The IIN is as Specialized Organization of the Organization of American States (OAS) in childhood and adolescence, which assists the States in the development of public policies to be taken for the benefit of children and adolescents, contributing in the field of their design and implementation in the perspective of the promotion, protection and full respect of the rights of children and adolescents in the region. Special assistance is aimed at the needs of the Member States of the Inter-American System and at the particularities of the regional groups.
Luis Almagro OAS Secretary General Néstor Méndez OAS Assistant Secretary General Berenice Cordero IIN Directing Council President Yazmín Cárdenas IIN Directing Council Vice President Víctor Giorgi IIN Director General Project Coordination: Luis Albernaz Dulce Castillo IIN - Area of Promotion and Protection of Rights Ingrid Quevedo IIN - Communication area Sara Cardoso IIN - Design
INDEX Prologue 11 Introduction
13
GENERAL COMMENTS Number 1..........................................................................................................................15
The aims of education
Number 2........................................................................................................................23 The role of independent national human rights institutions in the promotion and protection of the rights of the child
Number 3.......................................................................................................................29 HIV/AIDS and the rights of the child
Number 4.......................................................................................................................39 Adolescent health and development in the context of the Convention on the Rights of the Child
Number 5.......................................................................................................................49 General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6)
Number 6.......................................................................................................................63 Treatment of unaccompanied and separated children outside their country of origin
Number 7........................................................................................................................79 Implementing child rights in early childhood
Number 8.......................................................................................................................93 The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia)
Number 9.....................................................................................................................103 The rights of children with disabilities
Number 10....................................................................................................................119 Children’s rights in juvenile justice
Number 11.....................................................................................................................135 Indigenous children and their rights under the Convention
Number 12....................................................................................................................147 The right of the child to be heard
Number 13....................................................................................................................165 The right of the child to freedom from all forms of violence
Number 14...................................................................................................................183 The right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)*
Number 15....................................................................................................................197 The right of the child to the enjoyment of the highest attainable standard of health (art. 24)*
Number 16....................................................................................................................213 State obligations regarding the impact of the business sector on children’s rights*
Number 17...................................................................................................................229 The right of the child to rest, leisure, play, recreational activities, cultural life and the arts (art. 31)*
Number 18..................................................................................................................245 Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child on harmful practices
Number 19...................................................................................................................261 Public budgeting for the realization of children’s rights
Number 20.................................................................................................................277 The implementation of the rights of the child during adolescence
Number 21...................................................................................................................293 on children in street situations
Number 22.................................................................................................................309 Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration
Number 23...................................................................................................................321 Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return
Number 24.................................................................................................................335 Children’s rights in the child justice system
Number 25...................................................................................................................351 Children’s rights in relation to the digital environment
Keywords index....................................................................................................................366
U PV EDR A TED SION
PROLOGUE VÍCTOR GIORGI DIRECTOR GENERAL IIN OEA OCTOBER 2019 Three decades ago, on 20 November 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child. This produced a profound break in the relationship between the different societies of the planet and their children. Children would no longer be considered as “minors”, as beings to be domesticated, who must be cared for according to what they “are going to be”. Children acquire the category of “subjects with full rights” which, beyond technicalities, means that they become socially and culturally active persons who have the right to dignified and respectful treatment. With the adoption of the Convention and its rapid ratification by almost all States, the enormous challenge of its implementation opened up. It was necessary to bring their postulates to reality, make the guarantors assume their responsibilities, incorporate their mandates into national legislations, rethink social policies from a rights perspective, overcoming the classic welfare postures, and perhaps the most difficult thing, redefining intergenerational relations. The new place of childhood included a redefinition of adult roles within families, but also of institutions and society. The process of change encountered multiple obstacles: partial interpretations of the text, “misunderstandings”, inertias and euphemisms that concealed the continuity of centric adult points of view. The reality of children and the ways in which societies relate to them is dynamic and it was necessary to give the Convention the character of a living document, not to enable setbacks but to deepen and position itself from the perspective of rights in the face of new situations and challenges. The experience accumulated in the first 10 years after its approval and the analysis of the periodic reports presented by the countries, showed the Committee on the Rights of the Child the need to help in the proper interpretation of its articles, clarify meanings, incorporate scientific advances that enrich and deepen the contents of the Convention, address issues that gain strength and visibility in the agenda of children’s rights. Thus, the General Comments emerge as an instrument through which the Committee, in dialogue with experts and organizations, tries to ensure that the Convention takes on the character of a living document, which incorporates in the treatment of the different issues and based on the articulated advances arising from academic production, learning through the analysis of experiences, achievements and difficulties identified in the country reports, concerns arising from civil society and organizations working for children’s rights. Its existence was not initially foreseen in the text of the Convention, but experience showed its need to give it strength and renew the validity of the Convention. The first General Comment “The Purposes of Education” was adopted by the Committee on the Rights of the Child in 2001. Since then, the General Comments have been consolidated as a mechanism through which the Committee expresses guidelines and corrections based on social history. A quick glance at the 24 Comments issued so far allows us to see the changes that in these 30 years have had the themes and priorities in the agenda of children’s rights.
BI A CK N D E X
11
In 2009, when the twentieth anniversary of the Convention was being celebrated, the IIN-OAS, together with the Regional Office for Latin America and the Caribbean of the Office of the United Nations High Commissioner for Human Rights, edited the 10 Comments existing to that time. Today, in commemoration of the 30th anniversary of the Convention on the Rights of the Child, the IINOAS makes this digital edition available to political decision-makers, social workers, legal agents, academics, educators, teachers, children’s and adolescents’ organizations, and anyone who feels called upon by the difficult but indispensable task of bringing the rights into the daily lives of all children. This digital edition will allow for permanent updating, as well as specific research by subject to facilitate reading and consultation. Our intention is that the General Comments should not be taken as mere documents produced by an international organization, but as tools that should be articulated with the diverse realities and put to work to transform the lives of children and adolescents in the different States of the region. To conclude, we would like to share a metaphor to which Paulo Freire used to resort in his conversations: “Old trees are strong, they have roots, little can be expected from them towards the future but they have a majestic present. On the other hand, the new ones have a lot of potential but they are weak, their buds are tender, they must be watered and cared for so that they become strong. Without that care the old always imposes”.
U PV EDR A TED SION
INTRODUCTION LUIS PEDERNERA PRESIDENT COMMITTEE ON THE RIGHTS OF THE CHILD OCTOBER 2019 The Committee on the Rights of the Child elaborates General Comments as part of its work, in addition to the process of reviewing States parties, from which the documents of Conclusions and Observations are derived. General Comments are documents that provide guidance and interpretation on the rights contained in the Convention on the Rights of the Child for better implementation in the States. The Convention will soon be 30 years old and these comments seek to respond to the new challenges and realities that challenge it. To date, 24 General Comments have been approved and General Comment 25 on the Rights of the Child and the Gigital environment is already in the process of construction, which demonstrates that after 30 years, the Convention is a living document that can be applied to new contexts, challenges and opportunities for children at all times. To be able to present the updated edition of these Comments prepared by the Inter-American Children’s Institute has a double value. On the one hand, it is a tool that in its digital format facilitates the thematic search, and will be of great help for those who require these materials, especially to the States of our continent. On the other hand, it has the potential to be a tool that puts on the table an issue often forgotten and is the need for collaboration between the universal and Inter-American systems. The need to build bridges between systems is a first-rate issue, and will undoubtedly contribute to a better understanding of international standards in this area and advance in the effective implementation of the Convention on the Rights of the Child. As well as thanking this new instrument for all those who work on the rights of children and adolescents in our America, we encourage you to a next challenge and work to make this material friendly and accessible to all children in the region.
BI A CK N D E X
13
number 1
U PV EDR A TED SION
IN TR O DUCT I ON ARTICLE 29 (1), CONVENTION ON THE RIGHTS OF THE CHILD “1. States Parties agree that the education of the child shall be directed to: a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; e) The development of respect for the natural environment.”
THE SIGNIFICANCE OF ARTICLE 29 (1) 1. Article 29, paragraph 1, of the Convention on the Rights of the Child is of far-reaching importance. The aims of education that it sets out, which have been agreed to by all States parties, promote, support and protect the core value of the Convention: the human dignity innate in every child and his or her equal and inalienable rights. These aims, set out in the five subparagraphs of article 29 (1) are all linked directly to the realization of the child’s human dignity and rights, taking into account the child’s special developmental needs and diverse evolving capacities. The aims are: the holistic development of the full potential of the child (29 (1) (a)), including development of respect for human rights (29 (1) (b)), an enhanced sense of identity and affiliation (29 (1) (c)), and his or her socialization and interaction with others (29 (1) (d)) and with the environment (29 (1) (e)). 2. Article 29 (1) not only adds to the right to education recognized in article 28 a qualitative dimension which reflects the rights and inherent dignity of the child; it also insists upon the need for education to be child-centred, child-friendly and empowering, and it highlights the need 16
for educational processes to be based upon the very principles it enunciates1. The education to which every child has a right is one designed to provide the child with life skills, to strengthen the child’s capacity to enjoy the full range of human rights and to promote a culture which is infused by appropriate human rights values. The goal is to empower the child by developing his or her skills, learning and other capacities, human dignity, self-esteem and selfconfidence. “Education” in this context goes far beyond formal schooling to embrace the broad range of life experiences and learning processes which enable children, individually and collectively, to develop their personalities, talents and abilities and to live a full and satisfying life within society. 3. The child’s right to education is not only a matter of access (art. 28) but also of content. An education with its contents firmly rooted in the values of article 29 (1) is for every child an indispensable tool for her or his efforts to achieve in the course of her or his life a balanced, human rights-friendly response to the challenges that accompany a period of fundamental change driven by globalization, new technologies and related phenomena. Such challenges include the tensions between, inter alia, the global and the local; the individual and the collective; tradition and modernity; long- and short term considerations; competition and equality of opportunity; the expansion of knowledge and the capacity to assimilate it; and the spiritual and the material.2 And yet, in the national and international programmes and policies on education that really count the elements embodied in article 29 (1) seem all too often to be either largely missing or present only as a cosmetic afterthought. 4. Article 29 (1) states that the States parties agree that education should be directed to a wide range of values. This agreement overcomes the boundaries of religion, nation and culture built across many parts of the world. At first sight, some of the diverse values expressed in article 29 (1) might be thought to be in conflict with one another in certain situations. Thus, efforts to promote understanding, tolerance and friendship among all peoples, to which paragraph (1) (d) refers, might not always be automatically compatible with policies designed, in accordance with paragraph (1) (c), to develop respect for the child’s own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own. But in fact, part of the importance of this provision lies precisely in its recognition of the need for a balanced approach to education and one which succeeds in reconciling diverse values through dialogue and respect for difference. Moreover, children are capable of playing a unique role in bridging many of the differences that have historically separated groups of people from one another. 1 In this regard, the Committee takes note of General Comment No. 13 (1999) of the Committee on Economic, Social and Cultural Rights on the right to education, which deals, inter alia, with the aims of education under article 13 (1) of the International Covenant on Economic, Social and Cultural Rights. The Committee also draws attention to the general guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention, (CRC/C/58), paras. 112-116. 2 United Nations Educational, Scientific and Cultural Organization, Learning: The Treasure Within, Report of the International Commission on Education for the 21st Century, 1996, pp. 16 18.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
THE FUNCTIONS OF ARTICLE 29 5. Article 29 (1) is much more than an inventory or listing of different objectives which education should seek to achieve. Within the overall context of the Convention it serves to highlight, inter alia, the following dimensions. 6. First, it emphasizes the indispensable interconnected nature of the Convention’s provisions. It draws upon, reinforces, integrates and complements a variety of other provisions and cannot be properly understood in isolation from them. In addition to the general principles of the Convention - non-discrimination (art. 2), the best interest of the child (art. 3), the right to life, survival and development (art. 6), and the right to express views and have them taken into account (art. 12) - many other provisions may be mentioned, such as but not limited to the rights and responsibilities of parents (arts. 5 and 18), freedom of expression (art. 13), freedom of thought (art. 14), the right to information (art. 17), the rights of children with disabilities (art. 23), the right to education for health (art. 24), the right to education (art. 28), and the linguistic and cultural rights of children belonging to minority groups (art. 30). 7. Children’s rights are not detached or isolated values devoid of context, but exist within a broader ethical framework which is partly described in article 29 (1) and in the preamble to the Convention. Many of the criticisms that have been made of the Convention are specifically answered by this provision. Thus, for example, this article underlines the importance of respect for parents, of the need to view rights within their broader ethical, moral, spiritual, cultural or social framework, and of the fact that most children’s rights, far from being externally imposed, are embedded within the values of local communities. 8. Second, the article attaches importance to the process by which the right to education is to be promoted. Thus, efforts to promote the enjoyment of other rights must not be undermined, and should be reinforced, by the values imparted in the educational process. This includes not only the content of the curriculum but also the educational processes, the pedagogical methods and the environment within which education takes place, whether it be the home, school, or elsewhere. Children do not lose their human rights by virtue of passing through the school gates. Thus, for example, education must be provided in a way that respects the inherent dignity of the child and enables the child to express his or her views freely in accordance with article 12 (1) and to participate in school life. Education must also be provided in a way that respects the strict limits on discipline reflected in article 28 (2) and promotes non-violence in school. The Committee has repeatedly made clear in its concluding observations that the use of corporal punishment does not respect the inherent dignity of the child nor the strict limits on school discipline. Compliance with the values recognized in article 29 (1) clearly requires that schools be child-friendly in the fullest sense of the term and that they be consistent in all respects with the dignity of the child. The participation of children in school life, the creation of school communities and student councils, peer education and peer counselling, and the involvement of children in school disciplinary
proceedings should be promoted as part of the process of learning and experiencing the realization of rights. 9. Third, while article 28 focuses upon the obligations of State parties in relation to the establishment of educational systems and in ensuring access thereto, article 29 (1) underlines the individual and subjective right to a specific quality of education. Consistent with the Convention’s emphasis on the importance of acting in the best interests of the child, this article emphasizes the message of childcentred education: that the key goal of education is the development of the individual child’s personality, talents and abilities, in recognition of the fact that every child has unique characteristics, interests, abilities, and learning needs.3 Thus, the curriculum must be of direct relevance to the child’s social, cultural, environmental and economic context and to his or her present and future needs and take full account of the child’s evolving capacities; teaching methods should be tailored to the different needs of different children. Education must also be aimed at ensuring that essential life skills are learnt by every child and that no child leaves school without being equipped to face the challenges that he or she can expect to be confronted with in life. Basic skills include not only literacy and numeracy but also life skills such as the ability to make well-balanced decisions; to resolve conflicts in a non violent manner; and to develop a healthy lifestyle, good social relationships and responsibility, critical thinking, creative talents, and other abilities which give children the tools needed to pursue their options in life. 10. Discrimination on the basis of any of the grounds listed in article 2 of the Convention, whether it is overt or hidden, offends the human dignity of the child and is capable of undermining or even destroying the capacity of the child to benefit from educational opportunities. While denying a child’s access to educational opportunities is primarily a matter which relates to article 28 of the Convention, there are many ways in which failure to comply with the principles contained in article 29 (1) can have a similar effect. To take an extreme example, gender discrimination can be reinforced by practices such as a curriculum which is inconsistent with the principles of gender equality, by arrangements which limit the benefits girls can obtain from the educational opportunities offered, and by unsafe or unfriendly environments which discourage girls’ participation. Discrimination against children with disabilities is also pervasive in many formal educational systems and in a great many informal educational settings, including in the home.4 Children with HIV/AIDS are also heavily discriminated against in both settings.5 All such discriminatory practices are in direct contradiction with the requirements in article 29 (1) (a) that education be directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential. 3 United Nations Educational, Scientific and Cultural Organization, The Salamanca Statement and Framework for Action on Special Needs Education, 1994, p. viii. 4 See General Comment No. 5 (1994) of the Committee on Economic, Social and Cultural Rights on persons with disabilities. 5 See the recommendations adopted by the Committee on the Rights of the Child after its day of general discussion in 1998 on children living in a world with HIV/ AIDS (A/55/41, para. 1536).
BI A CK N D E X
17
U PV EDR A TED SION
11. The Committee also wishes to highlight the links between article 29 (1) and the struggle against racism, racial discrimination, xenophobia and related intolerance. Racism and related phenomena thrive where there is ignorance, unfounded fears of racial, ethnic, religious, cultural and linguistic or other forms of difference, the exploitation of prejudices, or the teaching or dissemination of distorted values. A reliable and enduring antidote to all of these failings is the provision of education which promotes an understanding and appreciation of the values reflected in article 29 (1), including respect for differences, and challenges all aspects of discrimination and prejudice. Education should thus be accorded one of the highest priorities in all campaigns against the evils of racism and related phenomena. Emphasis must also be placed upon the importance of teaching about racism as it has been practised historically, and particularly as it manifests or has manifested itself within particular communities. Racist behaviour is not something engaged in only by “others”. It is therefore important to focus on the child’s own community when teaching human and children’s rights and the principle of non-discrimination. Such teaching can effectively contribute to the prevention and elimination of racism, ethnic discrimination, xenophobia and related intolerance.
HUMAN RIGHTS EDUCATION
12. Fourth, article 29 (1) insists upon a holistic approach to education which ensures that the educational opportunities made available reflect an appropriate balance between promoting the physical, mental, spiritual and emotional aspects of education, the intellectual, social and practical dimensions, and the childhood and lifelong aspects. The overall objective of education is to maximize the child’s ability and opportunity to participate fully and responsibly in a free society. It should be emphasized that the type of teaching that is focused primarily on accumulation of knowledge, prompting competition and leading to an excessive burden of work on children, may seriously hamper the harmonious development of the child to the fullest potential of his or her abilities and talents. Education should be child-friendly, inspiring and motivating the individual child. Schools should foster a humane atmosphere and allow children to develop according to their evolving capacities.
16. The values embodied in article 29 (1) are relevant to children living in zones of peace but they are even more important for those living in situations of conflict or emergency. As the Dakar Framework for Action notes, it is important in the context of education systems affected by conflict, natural calamities and instability that educational programmes be conducted in ways that promote mutual understanding, peace and tolerance, and that help to prevent violence and conflict.7 Education about international humanitarian law also constitutes an important, but all too often neglected, dimension of efforts to give effect to article 29 (1).
13. Fifth, it emphasizes the need for education to be designed and provided in such a way that it promotes and reinforces the range of specific ethical values enshrined in the Convention, including education for peace, tolerance, and respect for the natural environment, in an integrated and holistic manner. This may require a multidisciplinary approach. The promotion and reinforcement of the values of article 29 (1) are not only necessary because of problems elsewhere, but must also focus on problems within the child’s own community. Education in this regard should take place within the family, but schools 18
and communities must also play an important role. For example, for the development of respect for the natural environment, education must link issues of environment and sustainable development with socio economic, sociocultural and demographic issues. Similarly, respect for the natural environment should be learnt by children at home, in school and within the community, encompass both national and international problems, and actively involve children in local, regional or global environmental projects. 14. Sixth, it reflects the vital role of appropriate educational opportunities in the promotion of all other human rights and the understanding of their indivisibility. A child’s capacity to participate fully and responsibly in a free society can be impaired or undermined not only by outright denial of access to education but also by a failure to promote an understanding of the values recognized in this article.
15. Article 29 (1) can also be seen as a foundation stone for the various programmes of human rights education called for by the World Conference on Human Rights, held in Vienna in 1993, and promoted by international agencies. Nevertheless, the rights of the child have not always been given the prominence they require in the context of such activities. Human rights education should provide information on the content of human rights treaties. But children should also learn about human rights by seeing human rights standards implemented in practice, whether at home, in school, or within the community. Human rights education should be a comprehensive, life-long process and start with the reflection of human rights values in the daily life and experiences of children.6
IMPLEMENTATION, MONITORING AND REVIEW 17. The aims and values reflected in this article are stated in quite general terms and their implications are potentially very wide ranging. This seems to have led many States parties to assume that it is unnecessary, or even inappropriate, to ensure that the relevant principles are reflected in legislation or in administrative directives. This 6 See General Assembly resolution 49/184 of 23 December 1994 proclaiming the United Nations Decade for Human Rights Education. 7 Education for All: Meeting our Collective Commitments, adopted at the World Education Forum, Dakar, 26-28 April 2000.
BACK
KEYWORDS INDEX
U PV EDR A TED SION assumption is unwarranted. In the absence of any specific formal endorsement in national law or policy, it seems unlikely that the relevant principles are or will be used to genuinely inform educational policies. The Committee therefore calls upon all States parties to take the necessary steps to formally incorporate these principles into their education policies and legislation at all levels. 18. The effective promotion of article 29 (1) requires the fundamental reworking of curricula to include the various aims of education and the systematic revision of textbooks and other teaching materials and technologies, as well as school policies. Approaches which do no more than seek to superimpose the aims and values of the article on the existing system without encouraging any deeper changes are clearly inadequate. The relevant values cannot be effectively integrated into, and thus be rendered consistent with, a broader curriculum unless those who are expected to transmit, promote, teach and, as far as possible, exemplify the values have themselves been convinced of their importance. Pre-service and in-service training schemes which promote the principles reflected in article 29 (1) are thus essential for teachers, educational administrators and others involved in child education. It is also important that the teaching methods used in schools reflect the spirit and educational philosophy of the Convention on the Rights of the Child and the aims of education laid down in article 29 (1). 19. In addition, the school environment itself must thus reflect the freedom and the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin called for in article 29 (1) (b) and (d). A school which allows bullying or other violent and exclusionary practices to occur is not one which meets the requirements of article 29 (1). The term “human rights education” is too often used in a way which greatly oversimplifies its connotations. What is needed, in addition to formal human rights education, is the promotion of values and policies conducive to human rights not only within schools and universities but also within the broader community. 20. In general terms, the various initiatives that States parties are required to take pursuant to their Convention obligations will be insufficiently grounded in the absence of widespread dissemination of the text of the Convention itself, in accordance with the provisions of article 42. This will also facilitate the role of children as promoters and defenders of children’s rights in their daily lives. In order to facilitate broader dissemination, States parties should report on the measures they have taken to achieve this objective and the Office of the High Commissioner for Human Rights should develop a comprehensive database of the language versions of the Convention that have been produced. 21. The media, broadly defined, also have a central role to play, both in promoting the values and aims reflected in article 29 (1) and in ensuring that their activities do not undermine the efforts of others to promote those objectives. Governments are obligated by the Convention, pursuant to article 17 (a), to take all appropriate steps to
“encourage the mass media to disseminate information and material of social and cultural benefit to the child”. 22. The Committee calls upon States parties to devote more attention to education as a dynamic process and to devising means by which to measure changes over time in relation to article 29 (1). Every child has the right to receive an education of good quality which in turn requires a focus on the quality of the learning environment, of teaching and learning processes and materials, and of learning outputs. The Committee notes the importance of surveys that may provide an opportunity to assess the progress made, based upon consideration of the views of all actors involved in the process, including children currently in or out of school, teachers and youth leaders, parents, and educational administrators and supervisors. In this respect, the Committee emphasizes the role of national-level monitoring which seeks to ensure that children, parents and teachers can have an input in decisions relevant to education.8 23. The Committee calls upon States parties to develop a comprehensive national plan of action to promote and monitor realization of the objectives listed in article 29 (1). If such a plan is drawn up in the larger context of a national action plan for children, a national human rights action plan, or a national human rights education strategy, the Government must ensure that it nonetheless addresses all of the issues dealt with in article 29 (1) and does so from a child-rights perspective. The Committee urges that the United Nations and other international bodies concerned with educational policy and human rights education seek better coordination so as to enhance the effectiveness of the implementation of article 29 (1). 24. The design and implementation of programmes to promote the values reflected in this article should become part of the standard response by Governments to almost all situations in which patterns of human rights violations have occurred. Thus, for example, where major incidents of racism, racial discrimination, xenophobia and related intolerance occur which involve those under 18, it can reasonably be presumed that the Government has not done all that it should to promote the values reflected in the Convention generally, and in article 29 (1) in particular. Appropriate additional measures under article 29 (1) should therefore be adopted which include research on and adoption of whatever educational techniques might have a positive impact in achieving the rights recognized in the Convention. 25. States parties should also consider establishing a review procedure which responds to complaints that existing policies or practices are not consistent with article 29 (1). Such review procedures need not necessarily entail the creation of new legal, administrative, or educational bodies. They might also be entrusted to national human rights institutions or to existing administrative bodies. The Committee requests each State party when reporting on this article to identify the genuine possibilities that exist at the national or local level to obtain a review of existing 8 The Committee recalls the recommendations in this respect which emerged from its day of general discussion in 1996 on the child and the media (see A/53/41 para. 1396).
BI A CK N D E X
19
U PV EDR A TED SION approaches which are claimed to be incompatible with the Convention. Information should be provided as to how such reviews can be initiated and how many such review procedures have been undertaken within the reporting period. 26. In order to better focus the process of examining States parties’ reports dealing with article 29 (1), and in accordance with the requirement in article 44 that reports shall indicate factors and difficulties, the Committee requests each State party to provide a detailed indication in its periodic reports of what it considers to be the most important priorities within its jurisdiction which call for a more concerted effort to promote the values reflected in this provision and to outline the programme of activities which it proposes to take over the succeeding five years in order to address the problems identified. 27. The Committee calls upon United Nations bodies and agencies and other competent bodies whose role is underscored in article 45 of the Convention to contribute more actively and systematically to the Committee’s work in relation to article 29 (1). 28. Implementation of comprehensive national plans of action to enhance compliance with article 29 (1) will require human and financial resources which should be available to the maximum extent possible, in accordance with article 4. Therefore, the Committee considers that resource constraints cannot provide a justification for a State party’s failure to take any, or enough, of the measures that are required. In this context, and in light of the obligations upon States parties to promote and encourage international cooperation both in general terms (arts. 4 and 45 of the Convention) and in relation to education (art. 28 (3)), the Committee urges States parties providing development cooperation to ensure that their programmes are designed so as to take full account of the principles contained in article 29 (1).
20
BACK
KEYWORDS INDEX
number 2
U PV EDR A TED SION
1. Article 4 of the Convention on the Rights of the Child obliges States parties to “undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention”. Independent national human rights institutions (NHRIs) are an important mechanism to promote and ensure the implementation of the Convention, and the Committee on the Rights of the Child considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights. In this regard, the Committee has welcomed the establishment of NHRIs and children’s ombudspersons/children’s commissioners and similar independent bodies for the promotion and monitoring of the implementation of the Convention in a number of States parties. 2. The Committee issues this general comment in order to encourage States parties to establish an independent institution for the promotion and monitoring of implementation of the Convention and to support them in this regard by elaborating the essential elements of such institutions and the activities which should be carried out by them. Where such institutions have already been established, the Committee calls upon States to review their status and effectiveness for promoting and protecting children’s rights, as enshrined in the Convention on the Rights of the Child and other relevant international instruments. 3. The World Conference on Human Rights, held in 1993, in the Vienna Declaration and Programme of Action reaffirmed “… the important and constructive role played by national institutions for the promotion and protection of human rights”, and encouraged “… the establishment and strengthening of national institutions”. The General Assembly and the Commission on Human Rights have repeatedly called for the establishment of national human rights institutions, underlining the important role NHRIs play in promoting and protecting human rights and enhancing public awareness of those rights. In its general guidelines for periodic reports, the Committee requires that States parties furnish information on “any independent body established to promote and protect the rights of the child …”,1 hence, it consistently addresses this issue during its dialogue with States parties. 4. NHRIs should be established in compliance with the Principles relating to the status of national institutions for the promotion and protection of human rights (The “Paris Principles”) adopted by the General Assembly in 19932 transmitted by the Commission on Human Rights in 1 General guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention (CRC/C/58), para. 18. 2 Principles relating to the status of national institutions for the promotion and protection of human rights (The “Paris Principles”), General Assembly resolution 48/134 of 20 December 1993, annex. 24
1992.3 These minimum standards provide guidance for the establishment, competence, responsibilities, composition, including pluralism, independence, methods of operation, and quasi-judicial activities of such national bodies. 5. While adults and children alike need independent NHRIs to protect their human rights, additional justifications exist for ensuring that children’s human rights are given special attention. These include the facts that children’s developmental state makes them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines Governments’ response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited. 6. Specialist independent human rights institutions for children, ombudspersons or commissioners for children’s rights have been established in a growing number of States parties. Where resources are limited, consideration must be given to ensuring that the available resources are used most effectively for the promotion and protection of everyone’s human rights, including children’s, and in this context development of a broad-based NHRI that includes a specific focus on children is likely to constitute the best approach. A broad-based NHRI should include within its structure either an identifiable commissioner specifically responsible for children’s rights, or a specific section or division responsible for children’s rights. 7. It is the view of the Committee that every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights. The Committee’s principal concern is that the institution, whatever its form, should be able, independently and effectively, to monitor, promote and protect children’s rights. It is essential that promotion and protection of children’s rights is “mainstreamed” and that all human rights institutions existing in a country work closely together to this end.
MANDATE AND POWERS 8. NHRIs should, if possible, be constitutionally entrenched and must at least be legislatively mandated. It is the view of the Committee that their mandate should include as broad a scope as possible for promoting and protecting human rights, incorporating the Convention on the Rights of the Child, its Optional Protocols and other relevant international human rights instruments - thus effectively covering children’s human rights, in particular their civil, political, economic, social and cultural rights. The legislation should include provisions setting out specific 3 Commission on Human Rights resolution 1992/54 of 3 March 1992, annex.
BACK
KEYWORDS INDEX
U PV EDR A TED SION functions, powers and duties relating to children linked to the Convention on the Rights of the Child and its Optional Protocols. If the NHRI was established before the existence of the Convention, or without expressly incorporating it, necessary arrangements, including the enactment or amendment of legislation, should be put in place so as to ensure conformity of the institution’s mandate with the principles and provisions of the Convention. 9. NHRIs should be accorded such powers as are necessary to enable them to discharge their mandate effectively, including the power to hear any person and obtain any information and document necessary for assessing the situations falling within their competence. These powers should include the promotion and protection of the rights of all children under the jurisdiction of the State party in relation not only to the State but to all relevant public and private entities.
ESTABLISHMENT PROCESS 10. The NHRI establishment process should be consultative, inclusive and transparent, initiated and supported at the highest levels of Government and inclusive of all relevant elements of the State, the legislature and civil society. In order to ensure their independence and effective functioning, NHRIs must have adequate infrastructure, funding (including specifically for children’s rights, within broad-based institutions), staff, premises, and freedom from forms of financial control that might affect their independence.
RESOURCES 11. While the Committee acknowledges that this is a very sensitive issue and that State parties function with varying levels of economic resources, the Committee believes that it is the duty of States to make reasonable financial provision for the operation of national human rights institutions in light of article 4 of the Convention. The mandate and powers of national institutions may be meaningless, or the exercise of their powers limited, if the national institution does not have the means to operate effectively to discharge its powers.
PLURALISTIC REPRESENTATION 12. NHRIs should ensure that their composition includes pluralistic representation of the various elements of civil society involved in the promotion and protection of human rights. They should seek to involve, among others, the following: human rights, anti-discrimination and children’s rights non-governmental organizations (NGOs), including child- and youth-led organizations; trade unions; social and professional organizations (of doctors, lawyers, journalists, scientists, etc.); universities and experts, including children’s rights experts. Government departments should be involved in an advisory capacity only. NHRIs should have appropriate and transparent appointment procedures, including an open and competitive selection process.
RECURSOS EFECTIVOS POR LAS VIOLACIONES DE LOS DERECHOS DEL NIÑO 13. NHRIs must have the power to consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by children. In order to be able to effectively carry out such investigations, they must have the powers to compel and question witnesses, access relevant documentary evidence and access places of detention. They also have a duty to seek to ensure that children have effective remedies independent advice, advocacy and complaints procedures - for any breaches of their rights. Where appropriate, NHRIs should undertake mediation and conciliation of complaints. 14. NHRIs should have the power to support children taking cases to court, including the power (a) to take cases concerning children’s issues in the name of the NHRI and (b) to intervene in court cases to inform the court about the human rights issues involved in the case.
ACCESSIBILITY AND PARTICIPATION 15. NHRIs should be geographically and physically accessible to all children. In the spirit of article 2 of the Convention, they should proactively reach out to all groups of children, in particular the most vulnerable and disadvantaged, such as (but not limited to) children in care or detention, children from minority and indigenous groups, children with disabilities, children living in poverty, refugee and migrant children, street children and children with special needs in areas such as culture, language, health and education. NHRI legislation should include the right of the institution to have access in conditions of privacy to children in all forms of alternative care and to all institutions that include children. 16. NHRIs have a key role to play in promoting respect for the views of children in all matters affecting them, as articulated in article 12 of the Convention, by Government and throughout society. This general principle should be applied to the establishment, organization and activities of national human rights institutions. Institutions must ensure that they have direct contact with children and that children are appropriately involved and consulted. Children’s councils, for example, could be created as advisory bodies for NHRIs to facilitate the participation of children in matters of concern to them. 17. NHRIs should devise specially tailored consultation programmes and imaginative communication strategies to ensure full compliance with article 12 of the Convention. A range of suitable ways in which children can communicate with the institution should be established.
BI A CK N D E X
25
U PV EDR A TED SION
18. 18. NHRIs must have the right to report directly, independently and separately on the state of children’s rights to the public and to parliamentary bodies. In this respect, States parties must ensure that an annual debate is held in Parliament to provide parliamentarians with an opportunity to discuss the work of the NHRI in respect of children’s rights and the State’s compliance with the Convention.
RECOMMENDED ACTIVITIES 19. The following is an indicative, but not exhaustive, list of the types of activities which NHRIs should carry out in relation to the implementation of children’s rights in light of the general principles of the Convention. They should: a) Undertake investigations into any situation of violation of children’s rights, on complaint or on their own initiative, within the scope of their mandate; b) Conduct inquiries on matters relating to children’s rights; c) Prepare and publicize opinions, recommendations and reports, either at the request of national authorities or on their own initiative, on any matter relating to the promotion and protection of children’s rights; d) Keep under review the adequacy and effectiveness of law and practice relating to the protection of children’s rights; e) Promote harmonization of national legislation, regulations and practices with the Convention on the Rights of the Child, its Optional Protocols and other international human rights instruments relevant to children’s rights and promote their effective implementation, including through the provision of advice to public and private bodies in construing and applying the Convention; f) Ensure that national economic policy makers take children’s rights into account in setting and evaluating national economic and development plans; g) Review and report on the Government’s implementation and monitoring of the state of children’s rights, seeking to ensure that statistics are appropriately disaggregated and other information collected on a regular basis in order to determine what must be done to realize children’s rights; h) Encourage ratification of or accession to any relevant international human rights instruments; i) In accordance with article 3 of the Convention requiring that the best interests of children should be a 26
primary consideration in all actions concerning them, ensure that the impact of laws and policies on children is carefully considered from development to implementation and beyond; j) In light of article 12, ensure that the views of children are expressed and heard on matters concerning their human rights and in defining issues relating to their rights; k) Advocate for and facilitate meaningful participation by children’s rights NGOs, including organizations comprised of children themselves, in the development of domestic legislation and international instruments on issues affecting children; l) Promote public understanding and awareness of the importance of children’s rights and, for this purpose, work closely with the media and undertake or sponsor research and educational activities in the field; m) In accordance with article 42 of the Convention which obligates State parties to “make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”, sensitize the Government, public agencies and the general public to the provisions of the Convention and monitor ways in which the State is meeting its obligations in this regard; n) Assist in the formulation of programmes for the teaching of, research into and integration of children’s rights in the curricula of schools and universities and in professional circles; o) Undertake human rights education which specifically focuses on children (in addition to promoting general public understanding about the importance of children’s rights); p) Take legal proceedings to vindicate children’s rights in the State or provide legal assistance to children; q) Engage in mediation or conciliation processes before taking cases to court, where appropriate; r) Provide expertise in children’s rights to the courts, in suitable cases as amicus curiae or intervenor; s) In accordance with article 3 of the Convention which obliges States parties to “ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision”, undertake visits to juvenile homes (and all places where children are detained for reform or punishment) and care institutions to report on the situation and to make recommendations for improvement; t) Undertake such other activities as are incidental to the above.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
REPORTING TO THE COMMITTEE NHRIS AND NGOS ON THE RIGHTS OF THE CHILD AND 26. Non-governmental organizations play a vital role in COOPERATION BETWEEN NHRIS AND promoting human rights and children’s rights. The role UNITED NATIONS AGENCIES AND of NHRIs, with their legislative base and specific powers, is complementary. It is essential that institutions work HUMAN RIGHTS MECHANISMS closely with NGOs and that Governments respect the 20. 20. NHRIs should contribute independently to the reporting process under the Convention and other relevant international instruments and monitor the integrity of government reports to international treaty bodies with respect to children’s rights, including through dialogue with the Committee on the Rights of the Child at its presessional working group and with other relevant treaty bodies. 21. The Committee requests that States parties include detailed information on the legislative basis and mandate and principal relevant activities of NHRIs in their reports to the Committee. It is appropriate for States parties to consult with independent human rights institutions during the preparation of reports to the Committee. However, States parties must respect the independence of these bodies and their independent role in providing information to the Committee. It is not appropriate to delegate to NHRIs the drafting of reports or to include them in the government delegation when reports are examined by the Committee. 22. NHRIs should also cooperate with the special procedures of the Commission on Human Rights, including country and thematic mechanisms, in particular the Special Rapporteur on the sale of children, child prostitution and child pornography and the Special Representative of the Secretary-General for Children and Armed Conflict.
independence of both NHRIs and NGOs.
REGIONAL AND INTERNATIONAL COOPERATION 27. Regional and international processes and mechanisms can strengthen and consolidate NHRIs through shared experience and skills, as NHRIs share common problems in the promotion and protection of human rights in their respective countries. 28. In this respect, NHRIs should consult and cooperate with relevant national, regional and international bodies and institutions on children’s rights issues. 29. Children’s human rights issues are not constrained by national borders and it has become increasingly necessary to devise appropriate regional and international responses to a variety of child rights issues (including, but not limited to, the trafficking of women and children, child pornography, child soldiers, child labour, child abuse, refugee and migrant children, etc.). International and regional mechanisms and exchanges are encouraged, as they provide NHRIs with an opportunity to learn from each other’s experience, collectively strengthen each other’s positions and contribute to resolving human rights problems affecting both countries and regions.
23. The United Nations has a long-standing programme of assistance for the establishment and strengthening of national human rights institutions. This programme, which is based in the Office of the High Commissioner for Human Rights (OHCHR), provides technical assistance and facilitates regional and global cooperation and exchanges among national human rights institutions. States parties should avail themselves of this assistance where necessary. The United Nations Children’s Fund (UNICEF) also offers expertise and technical cooperation in this area. 24. As articulated in article 45 of the Convention, the Committee may also transmit, as it considers appropriate, to any specialized United Nations agency, OHCHR and any other competent body any reports from States parties that contain a request or indicate a need for technical advice or assistance in the establishment of NHRIs.
NHRIS AND STATES PARTIES 25. Non-governmental organizations play a vital role in promoting human rights and children’s rights. The role of NHRIs, with their legislative base and specific powers, is complementary. It is essential that institutions work closely with NGOs and that Governments respect the independence of both NHRIs and NGOs.
BI A CK N D E X
27
Number 3
U PV EDR A TED SION
IN T R O DUCT I ON
THE O BJECTIVES
1
OF THE PRESENT GENERAL COMMENT
1. The HIV/AIDS epidemic has drastically changed the world in which children live. Millions of children have been infected and have died and many more are gravely affected as HIV spreads through their families and communities. The epidemic impacts on the daily life of younger children, and increases the victimization and marginalization of children, especially those living in particularly difficult circumstances. HIV/AIDS is not a problem of some countries but of the entire world. To truly bring its impact on children under control will require concerted and well-targeted efforts from all countries at all stages of development. 2. Initially children were considered to be only marginally affected by the epidemic. However, the international community has discovered that, unfortunately, children are at the heart of the problem. According to the Joint United Nations Programme on HIV/AIDS (UNAIDS), the most recent trends are alarming: in most parts of the world the majority of new infections are among young people between the ages of 15 and 24, sometimes younger. Women, including young girls, are also increasingly becoming infected. In most regions of the world, the vast majority of infected women do not know that they are infected and may unknowingly infect their children. Consequently, many States have recently registered an increase in their infant and child mortality rates. Adolescents are also vulnerable to HIV/AIDS because their first sexual experience may take place in an environment in which they have no access to proper information and guidance. Children who use drugs are at high risk. 3. Yet, all children can be rendered vulnerable by the particular circumstances of their lives, especially (a) children who are themselves HIV-infected; (b) children who are affected by the epidemic because of the loss of a parental caregiver or teacher and/or because their families or communities are severely strained by its consequences; and (c) children who are most prone to be infected or affected. 1 At its seventeenth session (1998), the Committee on the Rights of the Child held a day of general discussion on the theme of HIV/AIDS and children’s rights, in which it recommended that a number of actions be taken, including facilitating the engagement of States parties on HIV/AIDS issues in relation to the rights of the child. Human rights in relation to HIV/AIDS has also been discussed at the Eighth Meeting of Persons Chairing the Human Rights Treaty Bodies in 1997 and has been taken up by the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women. Similarly, HIV/AIDS has been discussed annually by the Commission on Human Rights for over a decade. UNAIDS and the United Nations Children’s Fund (UNICEF) have emphasized the rights of the child in relation to HIV/ AIDS in all aspects of their work, and the World AIDS Campaign for 1997 focused on “Children Living in a World with AIDS” and for 1998 on “Force for Change: World AIDS Campaign with Young People”. UNAIDS and the Office of the United Nations High Commissioner for Human Rights have also produced The International Guidelines on HIV/AIDS and Human Rights (1998) and its Revised Guideline 6 (2002) to promote and protect human rights in the context of HIV/AIDS. At the international political level, HIV/AIDS related rights have been recognized in the Declaration of Commitment on HIV/AIDS, adopted at the United Nations General Assembly special session, A World Fit for Children, adopted at the United Nations General Assembly special session on children, and in other international and regional documents. 30
4. The objectives of the present General Comment are: a) To identify further and strengthen understanding of all the human rights of children in the context of HIV/AIDS; b) To promote the realization of the human rights of children in the context of HIV/AIDS, as guaranteed under the Convention on the Rights of the Child (hereafter “the Convention”); c) To identify measures and good practices to increase the level of implementation by States of the rights related to the prevention of HIV/AIDS and the support, care and protection of children infected with or affected by this pandemic; d) To contribute to the formulation and promotion of child-oriented plans of action, strategies, laws, polices and programmes to combat the spread and mitigate the impact of HIV/AIDS at the national and international levels.
THE CON VEN TION’ S PERSPECTIVES ON HIV/AIDS: THE HOLISTIC CHILD RIGHTS BASED APPROACH
5. The issue of children and HIV/AIDS is perceived as mainly a medical or health problem, although in reality it involves a much wider range of issues. In this regard, the right to health (article 24 of the Convention) is, however, central. But HIV/AIDS impacts so heavily on the lives of all children that it affects all their rights - civil, political, economic, social and cultural. The rights embodied in the general principles of the Convention - the right to non discrimination (art. 2), the right of the child to have his/ her interest as a primary consideration (art. 3), the right to life, survival and development (art. 6) and the right to have his/her views respected (art. 12) - should therefore be the guiding themes in the consideration of HIV/AIDS at all levels of prevention, treatment, care and support. 6. Adequate measures to address HIV/AIDS can be undertaken only if the rights of children and adolescents are fully respected. The most relevant rights in this regard, in addition to those enumerated in paragraph 5 above, are the following: the right to access information and material aimed at the promotion of their social, spiritual and moral well being and physical and mental health (art. 17); the right to preventive health care, sex education and family planning education and services (art. 24 (f)); the right to an appropriate standard of living (art. 27); the right to privacy (art. 16); the right not to be separated from parents (art. 9); the right to be protected from violence (art. 19); the right to special protection and assistance by the State (art. 20); the rights of children with disabilities (art. 23); the right to health (art. 24); the right to social security, including social insurance (art. 26); the right to education and leisure (arts. 28 and 31); the right to be protected from economic
BACK
KEYWORDS INDEX
U PV EDR A TED SION and sexual exploitation and abuse, and from illicit use of narcotic drugs (arts. 32, 33, 34 and 36); the right to be protected from abduction, sale and trafficking as well as torture or other cruel, inhuman or degrading treatment or punishment (arts. 35 and 37); and the right to physical and psychological recovery and social reintegration (art. 39). Children are confronted with serious challenges to the above-mentioned rights as a result of the epidemic. The Convention, and in particular the four general principles with their comprehensive approach, provide a powerful framework for efforts to reduce the negative impact of the pandemic on the lives of children. The holistic rightsbased approach required to implement the Convention is the optimal tool for addressing the broader range of issues that relate to prevention, treatment and care efforts.
A. THE RIGHT TO NONDISCRIMINATION (ART. 2) 7. Discrimination is responsible for heightening the vulnerability of children to HIV and AIDS, as well as seriously impacting the lives of children who are affected by HIV/ AIDS, or are themselves HIV infected. Girls and boys of parents living with HIV/AIDS are often victims of stigma and discrimination as they too are often assumed to be infected. As a result of discrimination, children are denied access to information, education (see the Committee’s General Comment No. 1 on the aims of education), health or social care services or community life. At its extreme, discrimination against HIV infected children has resulted in their abandonment by their family, community and/or society. Discrimination also fuels the epidemic by making children in particular those belonging to certain groups like children living in remote or rural areas where services are less accessible, more vulnerable to infection. These children are thus doubly victimized. 8. Of particular concern is gender based discrimination combined with taboos or negative or judgemental attitudes to sexual activity of girls, often limiting their access to preventive measures and other services. Of concern also is discrimination based on sexual orientation. In the design of HIV/AIDS-related strategies, and in keeping with their obligations under the Convention, States parties must give careful consideration to prescribed gender norms within their societies with a view to eliminating gender-based discrimination as these norms impact on the vulnerability of both girls and boys to HIV/AIDS. States parties should, in particular, recognize that discrimination in the context of HIV/AIDS often impacts girls more severely than boys. 9. All the above-mentioned discriminatory practices are violations of children’s rights under the Convention. Article 2 of the Convention obliges States parties to ensure all the rights set forth in the Convention without discrimination of any kind, “irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. The Committee interprets “other status” under article 2 of the Convention to include HIV/AIDS status of the child or his/her parent(s). Laws, policies, strategies and practices should address all forms of discrimination that contribute to increasing the
impact of the epidemic. Strategies should also promote education and training programmes explicitly designed to change attitudes of discrimination and stigmatization associated with HIV/AIDS.
B. BEST INTERESTS OF THE CHILD (ART. 3) 10. Policies and programmes for the prevention, care and treatment of HIV/AIDS have generally been designed for adults with scarce attention to the principle of the best interests of the child as a primary consideration. Article 3, paragraph 1, of the Convention states “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. The obligations attached to this right are fundamental to guiding the action of States in relation to HIV/AIDS. The child should be placed at the centre of the response to the pandemic, and strategies should be adapted to children’s rights and needs.
C. THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT (ART. 6) 11. Children have the right not to have their lives arbitrarily taken, as well as to benefit from economic and social policies that will allow them to survive into adulthood and develop in the broadest sense of the word. State obligation to realize the right to life, survival and development also highlights the need to give careful attention to sexuality as well as to the behaviours and lifestyles of children, even if they do not conform with what society determines to be acceptable under prevailing cultural norms for a particular age group. In this regard, the female child is often subject to harmful traditional practices, such as early and/or forced marriage, which violate her rights and make her more vulnerable to HIV infection, including because such practices often interrupt access to education and information. Effective prevention programmes are only those that acknowledge the realities of the lives of adolescents, while addressing sexuality by ensuring equal access to appropriate information, life skills, and to preventive measures.
BI A CK N D E X
31
U PV EDR A TED SION
D. THE RIGHT TO EXPRESS VIEWS AND PREVEN TIO N , HAVE THEM TAKEN INTO ACCOUNT CARE, TREATMENT AND SUPPORT (ART. 12) 12. Children are rights holders and have a right to participate, in accordance with their evolving capacities, in raising awareness by speaking out about the impact of HIV/AIDS on their lives and in the development of HIV/ AIDS policies and programmes. Interventions have been found to benefit children most when they are actively involved in assessing needs, devising solutions, shaping strategies and carrying them out rather than being seen as objects for whom decisions are made. In this regard, the participation of children as peer educators, both within and outside schools, should be actively promoted. States, international agencies and non governmental organizations must provide children with a supportive and enabling environment to carry out their own initiatives, and to fully participate at both community and national levels in HIV policy and programme conceptualization, design, implementation, coordination, monitoring and review. A variety of approaches are likely to be necessary to ensure the participation of children from all sectors of society, including mechanisms which encourage children, consistent with their evolving capacities, to express their views, have them heard, and given due weight in accordance with their age and maturity (art. 12, para. 1). Where appropriate, the involvement of children living with HIV/AIDS in raising awareness, by sharing their experiences with their peers and others, is critical both to effective prevention and to reducing stigmatization and discrimination. States parties must ensure that children who participate in these awareness-raising efforts do so voluntarily, after being counselled, and that they receive both the social support and legal protection to allow them to lead normal lives during and after their involvement.
E. OBSTACLES 13. Experience has shown that many obstacles hinder effective prevention, delivery of care services and support for community initiatives on HIV/AIDS. These are mainly cultural, structural and financial. Denying that a problem exists, cultural practices and attitudes, including taboos and stigmatization, poverty and patronizing attitudes towards children are just some of the obstacles that may block the political and individual commitment needed for effective programmes. 14. With regard to financial, technical and human resources, the Committee is aware that such resources may not be immediately available. However, concerning this obstacle, the Committee wishes to remind States parties of their obligations under article 4. It further notes that resource constraints should not be used by States parties to justify their failure to take any or enough of the technical or financial measures required. Finally, the Committee wishes to emphasize in this regard the essential role of international cooperation.
32
15. The Committee wishes to stress that prevention, care, treatment and support are mutually reinforcing elements and provide a continuum within an effective response to HIV/AIDS.
A. INFORMATION ON HIV PREVENTION AND AWARENESS-RAISING 16. Consistent with the obligations of States parties in relation to the rights to health and information (arts. 24, 13 and 17), children should have the right to access adequate information related to HIV/AIDS prevention and care, through formal channels (e.g. through educational opportunities and child-targeted media) as well as informal channels (e.g. those targeting street children, institutionalized children or children living in difficult circumstances). States parties are reminded that children require relevant, appropriate and timely information which recognizes the differences in levels of understanding among them, is tailored appropriately to age level and capacity and enables them to deal positively and responsibly with their sexuality in order to protect themselves from HIV infection. The Committee wishes to emphasize that effective HIV/ AIDS prevention requires States to refrain from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, and that, consistent with their obligations to ensure the right to life, survival and development of the child (art. 6), States parties must ensure that children have the ability to acquire the knowledge and skills to protect themselves and others as they begin to express their sexuality. 17. Dialogue with community, family and peer counsellors, and the provision of “life skills” education within schools, including skills in communicating on sexuality and healthy living, have been found to be useful approaches to delivering HIV prevention messages to both girls and boys, but different approaches may be necessary to reach different groups of children. States parties must make efforts to address gender differences as they may impact on the access children have to prevention messages,and ensure that children are reached with appropriate prevention messages even if they face constraints due to language, religion, disability or other factors of discrimination. Particular attention must be paid to raising awareness among hard to reach populations. In this respect, the role of the mass media and/or oral tradition in ensuring that children have access to information and material, as recognized in article 17 of the Convention, is crucial both to providing appropriate information and to reducing stigmatization and discrimination. States parties should support the regular monitoring and evaluation of HIV/AIDS awareness campaigns to ascertain their effectiveness in providing information, reducing ignorance, stigmatization and discrimination, as well as addressing fear and misperceptions concerning HIV and its transmission among children, including adolescents.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
B. THE ROLE OF EDUCATION 18. Education plays a critical role in providing children with relevant and appropriate information on HIV/ AIDS, which can contribute to increased awareness and better understanding of this pandemic and prevent negative attitudes towards victims of HIV/AIDS (see also the Committee’s General Comment No. 1 on the aims of education). Furthermore, education can and should empower children to protect themselves from the risk of HIV infection. In this regard, the Committee wishes to remind States parties of their obligation to ensure that primary education is available to all children, whether infected, orphaned or otherwise affected by HIV/AIDS. In many communities where HIV has spread widely, children from affected families, in particular girls, are facing serious difficulties staying in school and the number of teachers and other school employees lost to AIDS is limiting and threatening to destroy the ability of children to access education. States parties must make adequate provision to ensure that children affected by HIV/AIDS can stay in school and ensure the qualified replacement of sick teachers so that children’s regular attendance at schools is not affected, and that the right to education (art. 28) of all children living within these communities is fully protected. 19. States parties must make every effort to ensure that schools are safe places for children, which offer them security and do not contribute to their vulnerability to HIV infection. In accordance with article 34 of the Convention, States parties are under obligation to take all appropriate measures to prevent, inter alia, the inducement or coercion of a child to engage in any unlawful sexual activity.
C. CHILD AND ADOLESCENT SENSITIVE HEALTH SERVICES 20. The Committee is concerned that health services are generally still insufficiently responsive to the needs of children under 18 years of age, in particular adolescents. As the Committee has noted on numerous occasions, children are more likely to use services that are friendly and supportive, provide a wide range of services and information, are geared to their needs, give them the opportunity to participate in decisions affecting their health, are accessible, affordable, confidential and nonjudgemental, do not require parental consent and are not discriminatory. In the context of HIV/AIDS and taking into account the evolving capacities of the child, States parties are encouraged to ensure that health services employ trained personnel who fully respect the rights of children to privacy (art. 16) and non-discrimination in offering them access to HIV related information, voluntary counselling and testing, knowledge of their HIV status, confidential sexual and reproductive health services, and free or low cost contraceptive, methods and services, as well as HIVrelated care and treatment if and when needed, including for the prevention and treatment of health problems related to HIV/AIDS, e.g. tuberculosis and opportunistic infections. 21. In some countries, even when child- and adolescentfriendly HIV-related services are available, they are
not sufficiently accessible to children with disabilities, indigenous children, children belonging to minorities, children living in rural areas, children living in extreme poverty or children who are otherwise marginalized within the society. In others, where the health system’s overall capacity is already strained, children with HIV have been routinely denied access to basic health care. States parties must ensure that services are provided to the maximum extent possible to all children living within their borders, without discrimination, and that they sufficiently take into account differences in gender, age and the social, economic, cultural and political context in which children live.
D. HIV COUNSELLING AND TESTING 22. The accessibility of voluntary, confidential HIV counselling and testing services, with due attention to the evolving capacities of the child, is fundamental to the rights and health of children. Such services are critical to children’s ability to reduce the risk of contracting or transmitting HIV, to access HIV-specific care, treatment and support, and to better plan for their futures. Consistent with their obligation under article 24 of the Convention to ensure that no child is deprived of his or her right of access to necessary health services, States parties should ensure access to voluntary, confidential HIV counselling and testing for all children. 23. The Committee wishes to stress that, as the duty of States parties is first and foremost to ensure that the rights of the child are protected, States parties must refrain from imposing mandatory HIV/AIDS testing of children in all circumstances and ensure protection against it. While the evolving capacities of the child will determine whether consent is required from him or her directly or from his or her parent or guardian, in all cases, consistent with the child’s right to receive information under articles 13 and 17 of the Convention, States parties must ensure that, prior to any HIV testing, whether by health-care providers in relation to children who are accessing health services for another medical condition or otherwise, the risks and benefits of such testing are sufficiently conveyed so that an informed decision can be made. 24. States parties must protect the confidentiality of HIV test results, consistent with the obligation to protect the right to privacy of children (art. 16), including within health and social welfare settings, and information on the HIV status of children may not be disclosed to third parties, including parents, without the child’s consent.
E. MOTHER-TO-CHILD TRANSMISSION 25. Mother-to-child transmission (MTCT) is responsible for the majority of HIV infections in infants and young children. Infants and young children can be infected with HIV during pregnancy, labour and delivery, and through breastfeeding. States parties are requested to ensure implementation of the strategies recommended by the United Nations agencies to prevent HIV infection in infants and young children. These include: (a) the primary prevention of HIV infection among parents-to-be; (b) the prevention of unintended pregnancies in HIV-infected
BI A CK N D E X
33
U PV EDR A TED SION
women, (c) the prevention of HIV transmission from HIVinfected women to their infants; and (d) the provision of care, treatment and support to HIV-infected women, their infants and families. 26. To prevent MTCT of HIV, States parties must take steps, including the provision of essential drugs, e.g. anti-retroviral drugs, appropriate antenatal, delivery and post-partum care, and making HIV voluntary counselling and testing services available to pregnant women and their partners. The Committee recognizes that anti-retroviral drugs administered to a woman during pregnancy and/or labour and, in some regimens, to her infant, have been shown to significantly reduce the risk of transmission from mother to child. However, in addition, States parties should provide support for mothers and children, including counselling on infant feeding options. States parties are reminded that counselling of HIV-positive mothers should include information about the risks and benefits of different infant feeding options, and guidance on selecting the option most likely to be suitable for their situation. Follow-up support is also required in order for women to be able to implement their selected option as safely as possible. 27. Even in populations with high HIV prevalence, the majority of infants are born to women who are not HIVinfected. For the infants of HIV-negative women and women who do not know their HIV status, the Committee wishes to emphasize, consistent with articles 6 and 24 of the Convention, that breastfeeding remains the best feeding choice. For the infants of HIV positive mothers, available evidence indicates that breastfeeding can add to the risk of HIV transmission by 10-20 per cent, but that lack of breastfeeding can expose children to an increased risk of malnutrition or infectious diseases other than HIV. United Nations agencies have recommended that, where replacement feeding is affordable, feasible, acceptable, sustainable and safe, avoidance of all breastfeeding by HIV-infected mothers is recommended; otherwise, exclusive breastfeeding is recommended during the first months of life and should then be discontinued as soon as it is feasible.
F. TREATMENT AND CARE 28. The obligations of States parties under the Convention extend to ensuring that children have sustained and equal access to comprehensive treatment and care, including necessary HIV related drugs, goods and services on a basis of non-discrimination. It is now widely recognized that comprehensive treatment and care includes anti-retroviral and other drugs, diagnostics and related technologies for the care of HIV/AIDS, related opportunistic infections and other conditions, good nutrition, and social, spiritual and psychological support, as well as family, community and home-based care. In this regard, States parties should 34
negotiate with the pharmaceutical industry in order to make the necessary medicines locally available at the lowest costs possible. Furthermore, States parties are requested to affirm, support and facilitate the involvement of communities in the provision of comprehensive HIV/ AIDS treatment, care and support, while at the same time complying with their own obligations under the Convention. States parties are called upon to pay special attention to addressing those factors within their societies that hinder equal access to treatment, care and support for all children.
G. INVOLVEMENT OF CHILDREN IN RESEARCH 29. Consistent with article 24 of the Convention, States parties must ensure that HIV/AIDS research programmes include specific studies that contribute to effective prevention, care, treatment and impact reduction for children. States parties must, nonetheless, ensure that children do not serve as research subjects until an intervention has already been thoroughly tested on adults. Rights and ethical concerns have arisen in relation to HIV/ AIDS biomedical research, HIV/ADS operations, and social, cultural and behavioural research. Children have been subjected to unnecessary or inappropriately designed research with little or no voice to either refuse or consent to participation. In line with the child’s evolving capacities, consent of the child should be sought and consent may be sought from parents or guardians if necessary, but in all cases consent must be based on full disclosure of the risks and benefits of research to the child. States parties are further reminded to ensure that the privacy rights of children, in line with their obligations under article 16 of the Convention, are not inadvertently violated through the research process and that personal information about children, which is accessed through research, is, under no circumstances, used for purposes other than that for which consent was given. States parties must make every effort to ensure that children and, according to their evolving capacities, their parents and/or their guardians participate in decisions on research priorities and that a supportive environment is created for children who participate in such research.
VULNERABILITY
AND CHILDREN NEEDING SPECIAL PROTECTION 30. The vulnerability of children to HIV/AIDS resulting from political, economic, social, cultural and other factors determines the likelihood of their being left with insufficient support to cope with the impact of HIV/ AIDS on their families and communities, exposed to the risk of infection, subjected to inappropriate research, or
BACK
KEYWORDS INDEX
U PV EDR A TED SION deprived of access to treatment, care and support if and when HIV infection sets in. Vulnerability to HIV/AIDS is most acute for children living in refugee and internally displaced persons camps, children in detention, children living in institutions, as well as children living in extreme poverty, children living in situations of armed conflict, child soldiers, economically and sexually exploited children, and disabled, migrant, minority, indigenous, and street children. However, all children can be rendered vulnerable by the particular circumstances of their lives. Even in times of severe resource constraints, the Committee wishes to note that the rights of vulnerable members of society must be protected and that many measures can be pursued with minimum resource implications. Reducing vulnerability to HIV/AIDS requires first and foremost that children, their families and communities be empowered to make informed choices about decisions, practices or policies affecting them in relation to HIV/AIDS.
A. CHILDREN AFFECTED AND ORPHANED BY HIV/AIDS 31. Special attention must be given to children orphaned by AIDS and to children from affected families, including child-headed households, as these impact on vulnerability to HIV infection. For children from families affected by HIV/AIDS, the stigmatization and social isolation they experience may be accentuated by the neglect or violation of their rights, in particular discrimination resulting in a decrease or loss of access to education, health and social services. The Committee wishes to underline the necessity of providing legal, economic and social protection to affected children to ensure their access to education, inheritance, shelter and health and social services, as well as to make them feel secure in disclosing their HIV status and that of their family members when the children deem it appropriate. In this respect, States parties are reminded that these measures are critical to the realization of the rights of children and to giving them the skills and support necessary to reduce their vulnerability and risk of becoming infected. 32. The Committee wishes to emphasize the critical implications of proof of identity for children affected by HIV/AIDS, as it relates to securing recognition as a person before the law, safeguarding the protection of rights, in particular to inheritance, education, health and other social services, as well as to making children less vulnerable to abuse and exploitation, particularly if separated from their families due to illness or death. In this respect, birth registration is critical to ensuring the rights of the child and is also necessary to minimize the impact of HIV/ AIDS on the lives of affected children. States parties are, therefore, reminded of their obligation under article 7 of the Convention to ensure that systems are in place for the registration of every child at or immediately after birth. 33. The trauma HIV/AIDS brings to the lives of orphans often begins with the illness and death of one of their parents, and is frequently compounded by the effects of stigmatization and discrimination. In this respect, States parties are particularly reminded to ensure that both law and practice support the inheritance and property rights
of orphans, with particular attention to the underlying gender-based discrimination which may interfere with the fulfilment of these rights. Consistent with their obligations under article 27 of the Convention, States parties must also support and strengthen the capacity of families and communities of children orphaned by AIDS to provide them with a standard of living adequate for their physical, mental, spiritual, moral, economic and social development, including access to psychosocial care, as needed. 34. Orphans are best protected and cared for when efforts are made to enable siblings to remain together, and in the care of relatives or family members. The extended family, with the support of the surrounding community, may be the least traumatic and therefore the best way to care for orphans when there are no other feasible alternatives. Assistance must be provided so that, to the maximum extent possible, children can remain within existing family structures. This option may not be available due to the impact HIV/AIDS has on the extended family. In that case, States parties should provide, as far as possible, for family-type alternative care (e.g. foster care). States parties are encouraged to provide support, financial and otherwise, when necessary, to child-headed households. States parties must ensure that their strategies recognize that communities are at the front line of the response to HIV/AIDS and that these strategies are designed to assist communities in determining how best to provide support to the orphans living there. 35. Although institutionalized care may have detrimental effects on child development, States parties may, nonetheless, determine that it has an interim role to play in caring for children orphaned by HIV/AIDS when family-based care within their own communities is not a possibility. It is the opinion of the Committee that any form of institutionalized care for children should only serve as a measure of last resort, and that measures must be fully in place to protect the rights of the child and guard against all forms of abuse and exploitation. In keeping with the right of children to special protection and assistance when within these environments, and consistent with articles 3, 20 and 25 of the Convention, strict measures are needed to ensure that such institutions meet specific standards of care and comply with legal protection safeguards. States parties are reminded that limits must be placed on the length of time children spend in these institutions, and programmes must be developed to support any children who stay in these institutions, whether infected or affected by HIV/AIDS, to successfully reintegrate them into their communities.
B. VICTIMS OF SEXUAL AND ECONOMIC EXPLOITATION 36. Girls and boys who are deprived of the means of survival and development, particularly children orphaned by AIDS, may be subjected to sexual and economic exploitation in a variety of ways, including the exchange of sexual services or hazardous work for money to survive, support their sick or dying parents and younger siblings, or to pay for school fees. Children who are infected or directly affected by HIV/AIDS may find themselves at a double disadvantage -
BI A CK N D E X
35
U PV EDR A TED SION experiencing discrimination on the basis of both their social and economic marginalization and their, or their parents’, HIV status. Consistent with the right of children under articles 32, 34, 35 and 36 of the Convention, and in order to reduce children’s vulnerability to HIV/AIDS, States parties are under obligation to protect children from all forms of economic and sexual exploitation, including ensuring they do not fall prey to prostitution networks, and that they are protected from performing any work likely to be prejudicial to, or to interfere with, their education, health, or physical, mental, spiritual, moral or social development. States parties must take bold action to protect children from sexual and economic exploitation, trafficking and sale and, consistent with the rights under article 39, create opportunities for those who have been subjected to such treatment to benefit from the support and caring services of the State and non governmental entities engaged in these issues.
C. VICTIMS OF VIOLENCE AND ABUSE 37. Children may be exposed to various forms of violence and abuse which may increase the risk of their becoming HIV-infected, and may also be subjected to violence as a result of their being infected or affected by HIV/ AIDS. Violence, including rape and other forms of sexual abuse, can occur in the family or foster setting or may be perpetrated by those with specific responsibilities towards children, including teachers and employees of institutions working with children, such as prisons and institutions concerned with mental health and other disabilities. In keeping with the rights of the child set forth in article 19 of the Convention, States parties have the obligation to protect children from all forms of violence and abuse, whether at home, in school or other institutions, or in the community.
and boys - who were used by military or other uniformed personnel to provide domestic help or sexual services, or who are internally displaced or living in refugee camps. In keeping with States parties’ obligations, including under articles 38 and 39 of the Convention, active information campaigns, combined with the counselling of children and mechanisms for the prevention and early detection of violence and abuse, must be put in place within conflictand disaster-affected regions, and must form part of national and community responses to HIV/AIDS.
SUBSTANCE ABUSE 39. The use of substances, including alcohol and drugs, may reduce the ability of children to exert control over their sexual conduct and, as a result, may increase their vulnerability to HIV infection. Injecting practices using unsterilized instruments further increase the risk of HIV transmission. The Committee notes that greater understanding of substance use behaviours among children is needed, including the impact that neglect and violation of the rights of the child has on these behaviours. In most countries, children have not benefited from pragmatic HIV prevention programmes related to substance use, which even when they do exist have largely targeted adults. The Committee wishes to emphasize that policies and programmes aimed at reducing substance use and HIV transmission must recognize the particular sensitivities and lifestyles of children, including adolescents, in the context of HIV/AIDS prevention. Consistent with the rights of children under articles 33 and 24 of the Convention, States parties are obligated to ensure the implementation of programmes which aim to reduce the factors that expose children to the use of substances, as well as those that provide treatment and support to children who are abusing substances.
38. Programmes must be specifically adapted to the environment in which children live, to their ability to recognize and report abuses and to their individual capacity and autonomy. The Committee considers that the relationship between HIV/AIDS and the violence or abuse suffered by children in the context of war and armed conflict requires specific attention. Measures to prevent violence and abuse in these situations are critical, and States parties must ensure the incorporation of HIV/AIDS and child rights issues in addressing and supporting children - girls
36
BACK
KEYWORDS INDEX
U PV EDR A TED SION
RECOMMENDATIONS
40. The Committee hereby reaffirms the recommendations, which emerged at the day of general discussion on children living in a world with HIV/AIDS (CRC/C/80), and calls upon States parties: a) To adopt and implement national and local HIV/ AIDS-related policies, including effective plans of action, strategies, and programmes that are child-centred, rights-based and incorporate the rights of the child under the Convention, including by taking into account the recommendations made in the previous paragraphs of the present General Comment and those adopted at the United Nations General Assembly special session on children (2002); b) To allocate financial, technical and human resources, to the maximum extent possible, to supporting national and community-based action (art. 4), and, where appropriate, within the context of international cooperation (see paragraph 41 below). c) To review existing laws or enact new legislation with a view to implementing fully article 2 of the Convention, and in particular to expressly prohibiting discrimination based on real or perceived HIV/AIDS status so as to guarantee equal access for of all children to all relevant services, with particular attention to the child’s right to privacy and confidentiality and to other recommendations made by the Committee in the previous paragraphs relevant to legislation; d) To include HIV/AIDS plans of action, strategies, policies and programmes in the work of national mechanisms responsible for monitoring and coordinating children’s rights and to consider the establishment of a review procedure, which responds specifically to complaints of neglect or violation of the rights of the child in relation to HIV/AIDS, whether this entails the creation of a new legislative or administrative body or is entrusted to an existing national institution; e) To reassess their HIV-related data collection and evaluation to ensure that they adequately cover children as defined under the Convention, are disaggregated by age and gender ideally in five-year age groups, and include, as far as possible, children belonging to vulnerable groups and those in need of special protection; f) To include, in their reporting process under article 44 of the Convention, information on national HIV/AIDS policies and programmes and, to the extent possible,
budgeting and resource allocations at the national, regional and local levels, as well as within these breakdowns the proportions allocated to prevention, care, research and impact reduction. Specific attention must be given to the extent to which these programmes and policies explicitly recognize children (in the light of their evolving capacities) and their rights, and the extent to which HIV-related rights of children are dealt with in laws, policies and practices, with specific attention to discrimination against children on the basis of their HIV status, as well as because they are orphans or the children of parents living with HIV/ AIDS. The Committee requests States parties to provide a detailed indication in their reports of what they consider to be the most important priorities within their jurisdiction in relation to children and HIV/AIDS, and to outline the programme of activities they intend to pursue over the coming five years in order to address the problems identified. This would allow activities to be progressively assessed over time. 41. In order to promote international cooperation, the Committee calls upon UNICEF, World Health Organization, United Nations Population Fund, UNAIDS and other relevant international bodies, organizations and agencies to contribute systematically, at the national level, to efforts to ensure the rights of children in the context of HIV/ AIDS, and also to continue to work with the Committee to improve the rights of the child in the context of HIV/ AIDS. Further, the Committee urges States providing development cooperation to ensure that HIV/AIDS strategies are so designed as to take fully into account the rights of the child. 42. Non-governmental organizations, as well as communitybased groups and other civil society actors, such as youth groups, faith-based organizations, women’s organizations and traditional leaders, including religious and cultural leaders, all have a vital role to play in the response to the HIV/AIDS pandemic. States parties are called upon to ensure an enabling environment for participation by civil society groups, which includes facilitating collaboration and coordination among the various players, and that these groups are given the support needed to enable them to operate effectively without impediment (in this regard, States parties are specifically encouraged to support the full involvement of people living with HIV/AIDS, with particular attention to the inclusion of children, in the provision of HIV/AIDS prevention, care, treatment and support services).
BI A CK N D E X
37
Number 4
U PV EDR A TED SION and on the involvement of children in armed conflict, as well as other relevant international human rights norms and standards.1
IN T R O DUC T I ON
FUNDAMENTAL
1. The Convention on the Rights of the Child defines a child as “every human being below the age of 18 years unless, under the law applicable, majority is attained earlier” (art. 1). Consequently, adolescents up to 18 years old are holders of all the rights enshrined in the Convention; they are entitled to special protection measures and, according to their evolving capacities, they can progressively exercise their rights (art. 5).
5. As recognized by the World Conference on Human Rights (1993) and repeatedly stated by the Committee, children’s rights too are indivisible and interrelated. In addition to articles 6 and 24, other provisions and principles of the Convention are crucial in guaranteeing that adolescents fully enjoy their right to health and development.
PRINCIPLES AND OTHER OBLIGATIONS OF STATES PARTIES
2. Adolescence is a period characterized by rapid physical, cognitive and social changes, including sexual and reproductive maturation; the gradual building up of the capacity to assume adult behaviours and roles involving new responsibilities requiring new knowledge and skills. While adolescents are in general a healthy population group, adolescence also poses new challenges to health and development owing to their relative vulnerability and pressure from society, including peers, to adopt risky health behaviour. These challenges include developing an individual identity and dealing with one’s sexuality. The dynamic transition period to adulthood is also generally a period of positive changes, prompted by the significant capacity of adolescents to learn rapidly, to experience new and diverse situations, to develop and use critical thinking, to familiarize themselves with freedom, to be creative and to socialize. 3. The Committee on the Rights of the Child notes with concern that in implementing their obligations under the Convention, States parties have not given sufficient attention to the specific concerns of adolescents as rights holders and to promoting their health and development. This has motivated the Committee to adopt the present general comment in order to raise awareness and provide States parties with guidance and support in their efforts to guarantee the respect for, protection and fulfilment of the rights of adolescents, including through the formulation of specific strategies and policies. 4. The Committee understands the concepts of “health and development” more broadly than being strictly limited to the provisions defined in articles 6 (right to life, survival and development) and 24 (right to health) of the Convention. One of the aims of this general comment is precisely to identify the main human rights that need to be promoted and protected in order to ensure that adolescents do enjoy the highest attainable standard of health, develop in a well-balanced manner, and are adequately prepared to enter adulthood and assume a constructive role in their communities and in society at large. This general comment should be read in conjunction with the Convention and its two Optional Protocols on the sale of children, child prostitution and child pornography, 40
THE RIGHT TO NON-DISCRIMINATION 6. States parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention without discrimination (art. 2), including with regard to “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. These grounds also cover adolescents’ sexual orientation and health status (including HIV/AIDS and mental health). Adolescents who are subject to discrimination are more vulnerable to abuse, other types of violence and exploitation, and their health and development are put at greater risk. They are therefore entitled to special attention and protection from all segments of society.
APPROPRIATE GUIDANCE IN THE EXERCISE OF RIGHTS 7. The Convention acknowledges the responsibilities, rights and duties of parents (or other persons legally responsible for the child) “to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the Convention” (art. 5). The Committee believes that parents or other persons legally responsible for the child need to fulfil with care their right and responsibility to provide direction and guidance to their adolescent children in the exercise by the latter of their rights. They have an obligation to take into account the adolescents’ views, in accordance with their age and maturity, and to provide a safe and supportive environment in which the adolescent can develop. Adolescents need to be recognized by the members of their family environment as active rights holders who have the capacity to become full and responsible citizens, given the proper guidance and direction. 1 These include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Convention on the Elimination of All Forms of Discrimination Against Women.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
RESPECT FOR THE VIEWS OF THE CHILD 8. The right to express views freely and have them duly taken into account (art. 12) is also fundamental in realizing adolescents’ right to health and development. States parties need to ensure that adolescents are given a genuine chance to express their views freely on all matters affecting them, especially within the family, in school, and in their communities. In order for adolescents to be able safely and properly to exercise this right, public authorities, parents and other adults working with or for children need to create an environment based on trust, information sharing, the capacity to listen and sound guidance that is conducive for adolescents’ participating equally including in decision-making processes.
LEGAL AND JUDICIAL MEASURES AND PROCESSES 9. Under article 4 of the Convention, “States parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized” therein. In the context of the rights of adolescents to health and development, States parties need to ensure that specific legal provisions are guaranteed under domestic law, including with regard to setting a minimum age for sexual consent, marriage and the possibility of medical treatment without parental consent. These minimum ages should be the same for boys and girls (article 2 of the Convention) and closely reflect the recognition of the status of human beings under 18 years of age as rights holders, in accordance with their evolving capacity, age and maturity (arts. 5 and 12 to 17). Further, adolescents need to have easy access to individual complaint systems as well as judicial and appropriate nonjudicial redress mechanisms that guarantee fair and due process, with special attention to the right to privacy (art. 16).
CIVIL RIGHTS AND FREEDOMS 10. 10. The Convention defines the civil rights and freedoms of children and adolescents in its articles 13 to 17. These are fundamental in guaranteeing the right to health and development of adolescents. Article 17 states that the child has the right to “access information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health”. The right of adolescents to access appropriate information is crucial if States parties are to promote cost effective measures, including through laws, policies and programmes, with regard to numerous health related situations, including those covered in articles 24 and 33 such as family planning, prevention of accidents, protection from harmful traditional practices, including early marriages and female genital mutilation, and the abuse of alcohol, tobacco and other harmful substances. 11. In order to promote the health and development of adolescents, States parties are also encouraged to respect strictly their right to privacy and confidentiality, including with respect to advice and counselling on health matters
(art. 16). Health-care providers have an obligation to keep confidential medical information concerning adolescents, bearing in mind the basic principles of the Convention. Such information may only be disclosed with the consent of the adolescent, or in the same situations applying to the violation of an adult’s confidentiality. Adolescents deemed mature enough to receive counselling without the presence of a parent or other person are entitled to privacy and may request confidential services, including treatment.
PROTECTION FROM ALL FORMS OF ABUSE, NEGLECT, VIOLENCE AND EXPLOITATION2 12. States parties must take effective measures to ensure that adolescents are protected from all forms of violence, abuse, neglect and exploitation (arts. 19, 32-36 and 38), paying increased attention to the specific forms of abuse, neglect, violence and exploitation that affects this age group. In particular, they should adopt special measures to ensure the physical, sexual and mental integrity of adolescents with disabilities, who are particularly vulnerable to abuse and neglect. States parties should also ensure that adolescents affected by poverty who are socially marginalized are not criminalized. In this regard, financial and human resources need to be allocated to promote research that would inform the adoption of effective local and national laws, policies and programmes. Policies and strategies should be reviewed regularly and revised accordingly. In taking these measures, States parties have to take into account the evolving capacities of adolescents and involve them in an appropriate manner in developing measures, including programmes, designed to protect them. In this context, the Committee emphasizes the positive impact that peer education can have, and the positive influence of proper role models, especially those in the worlds of arts, entertainment and sports.
DATA COLLECTION 13. Systematic data collection is necessary for States parties to be able to monitor the health and development of adolescents. States parties should adopt data-collection mechanisms that allow desegregation by sex, age, origin and socio-economic status so that the situation of different groups can be followed. Data should also be collected to study the situation of specific groups such as ethnic and/ or indigenous minorities, migrant or refugee adolescents, adolescents with disabilities, working adolescents, etc. Where appropriate, adolescents should participate in the analysis to ensure that the information is understood and utilized in an adolescent sensitive way.
CREATIN G A SAFE AND SUPPORTIVE ENVIRONMENT
14. 14. The health and development of adolescents are strongly determined by the environments in which they 2 See also the reports of the Committee’s days of general discussion on “Violence against children” held in 2000 and 2001 and the Recommendations adopted in this regard (see CRC/C/100, chap. V and CRC/C/111, chap. V).
BI A CK N D E X
41
U PV EDR A TED SION live. Creating a safe and supportive environment entails addressing attitudes and actions of both the immediate environment of the adolescent - family, peers, schools and services - as well as the wider environment created by, inter alia, community and religious leaders, the media, national and local policies and legislation. The promotion and enforcement of the provisions and principles of the Convention, especially articles 2-6, 12-17, 24, 28, 29 and 31, are key to guaranteeing adolescents’ right to health and development. States parties should take measures to raise awareness and stimulate and/or regulate action through the formulation of policy or the adoption of legislation and the implementation of programmes specifically for adolescents. 15. The Committee stresses the importance of the family environment, including the members of the extended family and community or other persons legally responsible for the child or adolescent (arts. 5 and 18). While most adolescents grow up in well functioning family environments, for some the family does not constitute a safe and supportive milieu. 16. The Committee calls upon States parties to develop and implement, in a manner consistent with adolescents’ evolving capacities, legislation, policies and programmes to promote the health and development of adolescents by (a) providing parents (or legal guardians) with appropriate assistance through the development of institutions, facilities and services that adequately support the well-being of adolescents, including, when needed, the provision of material assistance and support with regard to nutrition, clothing and housing (art. 27 (3)); (b) providing adequate information and parental support to facilitate the development of a relationship of trust and confidence in which issues regarding, for example, sexuality and sexual behaviour and risky lifestyles can be openly discussed and acceptable solutions found that respect the adolescent’s rights (art. 27 (3)); (c) providing adolescent mothers and fathers with support and guidance for both their own and their children’s well-being (art. 24 (f), 27 (2-3)); (d) giving, while respecting the values and norms of ethnic and other minorities, special attention, guidance and support to adolescents and parents (or legal guardians), whose traditions and norms may differ from those in the society where they live; and (e) ensuring that interventions in the family to protect the adolescent and, when necessary, separate her/him from the family, e.g. in case of abuse or neglect, are in accordance with applicable laws and procedures. Such laws and procedures should be reviewed to ensure that they conform to the principles of the Convention. 17. The school plays an important role in the life of many adolescents, as the venue for learning, development and socialization. Article 29 (1) states that education must be directed to “the development of the child’s personality, talents and mental and physical abilities to their fullest potential”. In addition, general comment No. 1 on the aims of education states that “Education must also be aimed at ensuring that … no child leaves school without being equipped to face the challenges that he or she can expect to be confronted with in life. Basic skills should include … the ability to make well-balanced decisions; to resolve 42
conflicts in a non violent manner; and to develop a healthy lifestyle [and] good social relationships …”. Considering the importance of appropriate education for the current and future health and development of adolescents, as well as for their children, the Committee urges States parties, in line with articles 28 and 29 of the Convention to (a) ensure that quality primary education is compulsory and available, accessible and free to all and that secondary and higher education are available and accessible to all adolescents; (b) provide well-functioning school and recreational facilities which do not pose health risks to students, including water and sanitation and safe journeys to school; (c) take the necessary actions to prevent and prohibit all forms of violence and abuse, including sexual abuse, corporal punishment and other inhuman, degrading or humiliating treatment or punishment in school, by school personnel as well as among students; (d) initiate and support measures, attitudes and activities that promote healthy behaviour by including relevant topics in school curricula. 18. During adolescence, an increasing number of young people are leaving school to start working to help support their families or for wages in the formal or informal sector. Participation in work activities in accordance with international standards, as long as it does not jeopardize the enjoyment of any of the other rights of adolescents, including health and education, may be beneficial for the development of the adolescent. The Committee urges States parties to take all necessary measures to abolish all forms of child labour, starting with the worst forms, to continuously review national regulations on minimum ages for employment with a view to making them compatible with international standards, and to regulate the working environment and conditions for adolescents who are working (in accordance with article 32 of the Convention, as well as ILO Conventions Nos. 138 and 182), so as to ensure that they are fully protected and have access to legal redress mechanisms. 19. The Committee also stresses that in accordance with article 23 (3) of the Convention, the special rights of adolescents with disabilities should be taken into account and assistance provided to ensure that the disabled child/ adolescent has effective access to and receives good quality education. States should recognize the principle of equal primary, secondary and tertiary educational opportunities for disabled children/adolescents, where possible in regular schools. 20. The Committee is concerned that early marriage and pregnancy are significant factors in health problems related to sexual and reproductive health, including HIV/ AIDS. Both the legal minimum age and actual age of marriage, particularly for girls, are still very low in several States parties. There are also non-health-related concerns: children who marry, especially girls, are often obliged to leave the education system and are marginalized from social activities. Further, in some States parties married children are legally considered adults, even if they are under 18, depriving them of all the special protection measures they are entitled under the Convention. The Committee strongly recommends that States parties review and, where necessary, reform their legislation and practice to increase the minimum age for marriage with and without
BACK
KEYWORDS INDEX
U PV EDR A TED SION parental consent to 18 years, for both girls and boys. The Committee on the Elimination of Discrimination against Women has made a similar recommendation (general comment No. 21 of 1994). 21. In most countries accidental injuries or injuries due to violence are a leading cause of death or permanent disability among adolescents. In that respect, the Committee is concerned about the injuries and death resulting from road traffic accidents, which affect adolescents disproportionately. States parties should adopt and enforce legislation and programmes to improve road safety, including driving education for and examination of adolescents and the adoption or strengthening of legislation known to be highly effective such as the obligations to have a valid driver’s licence, wear seat belts and crash helmets, and the designation of pedestrian areas. 22. The Committee is also very concerned about the high rate of suicide among this age group. Mental disorders and psychosocial illness are relatively common among adolescents. In many countries symptoms such as depression, eating disorders and self destructive behaviours, sometimes leading to self-inflicted injuries and suicide, are increasing. They may be related to, inter alia, violence, ill-treatment, abuse and neglect, including sexual abuse, unrealistically high expectations, and/or bullying or hazing in and outside school. States parties should provide these adolescents with all the necessary services. 23. Violence results from a complex interplay of individual, family, community and societal factors. Vulnerable adolescents such as those who are homeless or who are living in institutions, who belong to gangs or who have been recruited as child soldiers are especially exposed to both institutional and interpersonal violence. Under article 19 of the Convention, States parties must take all appropriate measures3 to prevent and eliminate: (a) institutional violence against adolescents, including through legislation and administrative measures in relation to public and private institutions for adolescents (schools, institutions for disabled adolescents, juvenile reformatories, etc.), and training and monitoring of personnel in charge of institutionalized children or who otherwise have contact with children through their work, including the police; and (b) interpersonal violence among adolescents, including by supporting adequate parenting and opportunities for social and educational development in early childhood, fostering non violent cultural norms and values (as foreseen in article 29 of the Convention), strictly controlling firearms and restricting access to alcohol and drugs. 24. In light of articles 3, 6, 12, 19 and 24 (3) of the Convention, States parties should take all effective measures to eliminate all acts and activities which threaten the right to life of adolescents, including honour killings. The Committee strongly urges States parties to develop and implement awareness-raising campaigns, education programmes and legislation aimed at changing prevailing attitudes, and address gender roles and stereotypes that contribute to harmful traditional practices. Further, States parties should facilitate the establishment of 3 Ibid.
multidisciplinary information and advice centres regarding the harmful aspects of some traditional practices, including early marriage and female genital mutilation. 25. The Committee is concerned about the influence exerted on adolescent health behaviours by the marketing of unhealthy products and lifestyles. In line with article 17 of the Convention, States parties are urged to protect adolescents from information that is harmful to their health and development, while underscoring their right to information and material from diverse national and international sources. States parties are therefore urged to regulate or prohibit information on and marketing of substances such as alcohol and tobacco, particularly when it targets children and adolescents4.
IN FO RMATIO N ,
SKILLS DEVELOPMENT, COUNSELLING, AND HEALTH SERVICES 26. Adolescents have the right to access adequate information essential for their health and development and for their ability to participate meaningfully in society. It is the obligation of States parties to ensure that all adolescent girls and boys, both in and out of school, are provided with, and not denied, accurate and appropriate information on how to protect their health and development and practise healthy behaviours. This should include information on the use and abuse, of tobacco, alcohol and other substances, safe and respectful social and sexual behaviours, diet and physical activity. 27. In order to act adequately on the information, adolescents need to develop the skills necessary, including self-care skills, such as how to plan and prepare nutritionally balanced meals and proper personal hygiene habits, and skills for dealing with particular social situations such as interpersonal communication, decision-making, and coping with stress and conflict. States parties should stimulate and support opportunities to build such skills through, inter alia, formal and informal education and training programmes, youth organizations and the media. 28. 28. In light of articles 3, 17 and 24 of the Convention, States parties should provide adolescents with access to sexual and reproductive information, including on family planning and contraceptives, the dangers of early pregnancy, the prevention of HIV/AIDS and the prevention and treatment of sexually transmitted diseases (STDs). In addition, States parties should ensure that they have access to appropriate information, regardless of their marital status and whether their parents or guardians consent. It is essential to find proper means and methods of providing information that is adequate and sensitive to the particularities and specific rights of adolescent girls and boys. To this end, States parties are encouraged to ensure that adolescents are actively involved in the design and dissemination of information through a variety of channels beyond the school, including youth organizations, 4 As proposed in the Framework Convention on Tobacco Control (2003) of the World Health Organization.
BI A CK N D E X
43
U PV EDR A TED SION religious, community and other groups and the media. 29. Under article 24 of the Convention, States parties are urged to provide adequate treatment and rehabilitation for adolescents with mental disorders, to make the community aware of the early signs and symptoms and the seriousness of these conditions, and to protect adolescents from undue pressures, including psychosocial stress. States parties are also urged to combat discrimination and stigma surrounding mental disorders, in line with their obligations under article 2. Every adolescent with a mental disorder has the right to be treated and cared for, as far as possible, in the community in which he or she lives. Where hospitalization or placement in a psychiatric institution is necessary, this decision should be made in accordance with the principle of the best interests of the child. In the event of hospitalization or institutionalization, the patient should be given the maximum possible opportunity to enjoy all his or her rights as recognized under the Convention, including the rights to education and to have access to recreational activities.5 Where appropriate, adolescents should be separated from adults. States parties must ensure that adolescents have access to a personal representative other than a family member to represent their interests, when necessary and appropriate.6 In accordance with article 25 of the Convention, States parties should undertake periodic review of the placement of adolescents in hospitals or psychiatric institutions. 30. Adolescents, both girls and boys, are at risk of being infected with and affected by STDs, including HIV/AIDS7. States should ensure that appropriate goods, services and information for the prevention and treatment of STDs, including HIV/AIDS, are available and accessible. To this end, States parties are urged (a) to develop effective prevention programmes, including measures aimed at changing cultural views about adolescents’ need for contraception and STD prevention and addressing cultural and other taboos surrounding adolescent sexuality; (b) to adopt legislation to combat practices that either increase adolescents’ risk of infection or contribute to the marginalization of adolescents who are already infected with STDs, including HIV; (c) to take measures to remove all barriers hindering the access of adolescents to information, preventive measures such as condoms, and care. 31. Adolescent girls should have access to information on the harm that early marriage and early pregnancy can cause, and those who become pregnant should have access to health services that are sensitive to their rights and particular needs. States parties should take measures to reduce maternal morbidity and mortality in adolescent girls, particularly caused by early pregnancy and unsafe abortion practices, and to support adolescent parents. Young mothers, especially where support is lacking, may be prone to depression and anxiety, compromising their ability to care for their child. The Committee urges States parties (a) to develop and implement programmes that provide access to sexual and reproductive health services, 5 For further guidance on this subject, refer to the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, (General Assembly resolution 46/119 of 17 December 1991, annex). 6 Ibid., in particular principles 2, 3 and 7. 7 For further guidance on this issue, see general comment No. 3 (2003) on HIV/ AIDS and the rights of children. 44
including family planning, contraception and safe abortion services where abortion is not against the law, adequate and comprehensive obstetric care and counselling; (b) to foster positive and supportive attitudes towards adolescent parenthood for their mothers and fathers; and (c) to develop policies that will allow adolescent mothers to continue their education. 32. Before parents give their consent, adolescents need to have a chance to express their views freely and their views should be given due weight, in accordance with article 12 of the Convention. However, if the adolescent is of sufficient maturity, informed consent shall be obtained from the adolescent her/himself, while informing the parents if that is in the “best interest of the child” (art. 3). 33. With regard to privacy and confidentiality, and the related issue of informed consent to treatment, States parties should (a) enact laws or regulations to ensure that confidential advice concerning treatment is provided to adolescents so that they can give their informed consent. Such laws or regulations should stipulate an age for this process, or refer to the evolving capacity of the child; and (b) provide training for health personnel on the rights of adolescents to privacy and confidentiality, to be informed about planned treatment and to give their informed consent to treatment.
VULN ERABILITY AND RISK
34. In ensuring respect for the right of adolescents to health and development, both individual behaviours and environmental factors which increase their vulnerability and risk should be taken into consideration. Environmental factors, such as armed conflict or social exclusion, increase the vulnerability of adolescents to abuse, other forms of violence and exploitation, thereby severely limiting adolescents’ abilities to make individual, healthy behaviour choices. For example, the decision to engage in unsafe sex increases adolescents’ risk of ill health. 35. In accordance with article 23 of the Convention, adolescents with mental and/or physical disabilities have an equal right to the highest attainable standard of physical and mental health. States parties have an obligation to provide adolescents with disabilities with the means necessary to realize their rights.8 States parties should (a) ensure that health facilities, goods and services are available and accessible to all adolescents with disabilities and that these facilities and services promote their selfreliance and their active participation in the community; (b) ensure that the necessary equipment and personal support are available to enable them to move around, participate and communicate; (c) pay specific attention to the special needs relating to the sexuality of adolescents with disabilities; and (d) remove barriers that hinder adolescents with disabilities in realizing their rights. 8 United Nations Standard Rules on Equal Opportunities for Persons with Disabilities.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 36. States parties have to provide special protection to homeless adolescents, including those working in the informal sector. Homeless adolescents are particularly vulnerable to violence, abuse and sexual exploitation from others, self-destructive behaviour, substance abuse and mental disorders. In this regard, States parties are required to (a) develop policies and enact and enforce legislation that protect such adolescents from violence, e.g. by law enforcement officials; (b) develop strategies for the provision of appropriate education and access to health care, and of opportunities for the development of livelihood skills. 37. Adolescents who are sexually exploited, including in prostitution and pornography, are exposed to significant health risks, including STDs, HIV/AIDS, unwanted pregnancies, unsafe abortions, violence and psychological distress. They have the right to physical and psychological recovery and social reintegration in an environment that fosters health, self respect and dignity (art. 39). It is the obligation of States parties to enact and enforce laws to prohibit all forms of sexual exploitation and related trafficking; to collaborate with other States parties to eliminate intercountry trafficking; and to provide appropriate health and counselling services to adolescents who have been sexually exploited, making sure that they are treated as victims and not as offenders. 38. Additionally, adolescents experiencing poverty, armed conflicts, all forms of injustice, family breakdown, political, social and economic instability and all types of migration may be particularly vulnerable. These situations might seriously hamper their health and development. By investing heavily in preventive policies and measures States parties can drastically reduce levels of vulnerability and risk factors; they will also provide cost-effective ways for society to help adolescents develop harmoniously in a free society.
N ATURE
OF STATES’ OBLIGATIONS 39. In exercising their obligations in relation to the health and development of adolescents, States parties shall always take fully into account the four general principles of the Convention. It is the view of the Committee that States parties must take all appropriate legislative, administrative and other measures for the realization and monitoring of the rights of adolescents to health and development as recognized in the Convention. To this end, States parties must notably fulfil the following obligations: a) To create a safe and supportive environment for adolescents, including within their family, in schools, in all types of institutions in which they may live, within their workplace and/or in the society at large; b) To ensure that adolescents have access to the information that is essential for their health and development and that they have opportunities to participate in decisions affecting their health (notably through informed consent and the right of confidentiality), to acquire life skills, to obtain adequate and age-appropriate information, and to make appropriate health behaviour choices; c) To ensure that health facilities, goods and services, including counselling and health services for mental and sexual and reproductive health, of appropriate quality and sensitive to adolescents’ concerns are available to all adolescents; d) To ensure that adolescent girls and boys have the opportunity to participate actively in planning and programming for their own health and development; e) To protect adolescents from all forms of labour which may jeopardize the enjoyment of their rights, notably by abolishing all forms of child labour and by regulating the working environment and conditions in accordance with international standards; f) To protect adolescents from all forms of intentional and unintentional injuries, including those resulting from violence and road traffic accidents;
BI A CK N D E X
45
U PV EDR A TED SION g) To protect adolescents from all harmful traditional practices, such as early marriages, honour killings and female genital mutilation; h) To ensure that adolescents belonging to especially vulnerable groups are fully taken into account in the fulfilment of all aforementioned obligations; i) To implement measures for the prevention of mental disorders and the promotion of mental health of adolescents. 40. The Committee draws the attention of States parties to the general comment No. 14 on the right to the highest attainable standard of health of the Committee on Economic, Social and Cultural Rights which states that, “States parties should provide a safe and supportive environment for adolescents that ensures the opportunity to participate in decisions affecting their health, to build life skills, to acquire appropriate information, to receive counselling and to negotiate the health-behaviour choices they make. The realization of the right to health of adolescents is dependent on the development of youthsensitive health care, which respects confidentiality and privacy and includes appropriate sexual and reproductive health services.”
42. States parties should, where feasible, adopt a multisectoral approach to the promotion and protection of adolescent health and development by facilitating effective and sustainable linkages and partnerships among all relevant actors. At the national level, such an approach calls for close and systematic collaboration and coordination within Government, so as to ensure the necessary involvement of all relevant government entities. Public health and other services utilized by adolescents should also be encouraged and assisted in seeking collaboration with, inter alia, private and/or traditional practitioners, professional associations, pharmacies and organizations that provide services to vulnerable groups of adolescents. 43. A multisectoral approach to the promotion and protection of adolescent health and development will not be effective without international cooperation. Therefore, States parties should, when appropriate, seek such cooperation with United Nations specialized agencies, programmes and bodies, international NGOs and bilateral aid agencies, international professional associations and other non-State actors.
41. In accordance with articles 24, 39 and other related provisions of the Convention, States parties should provide health services that are sensitive to the particular needs and human rights of all adolescents, paying attention to the following characteristics: a) Availability. Primary health care should include services sensitive to the needs of adolescents, with special attention given to sexual and reproductive health and mental health; b) Accessibility. Health facilities, goods and services should be known and easily accessible (economically, physically and socially) to all adolescents, without discrimination. Confidentiality should be guaranteed, when necessary; c) Acceptability. While fully respecting the provisions and principles of the Convention, all health facilities, goods and services should respect cultural values, be gender sensitive, be respectful of medical ethics and be acceptable to both adolescents and the communities in which they live; d) Quality. Health services and goods should be scientifically and medically appropriate, which requires personnel trained to care for adolescents, adequate facilities and scientifically accepted methods.
46
BACK
KEYWORDS INDEX
Number 5
U PV EDR A TED SION
IN TROD U CTION FOREWORD The Committee on the Rights of the Child has drafted this general comment to outline States parties’ obligations to develop what it has termed “general measures of implementation”. The various elements of the concept are complex and the Committee emphasizes that it is likely to issue more detailed general comments on individual elements in due course, to expand on this outline. Its general comment No. 2 (2002) entitled “The role of independent national human rights institutions in the protection and promotion of the rights of the child” has already expanded on this concept. “Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.”
1. When a State ratifies the Convention on the Rights of the Child, it takes on obligations under international law to implement it. Implementation is the process whereby States parties take action to ensure the realization of all rights in the Convention for all children in their jurisdiction.1 Article 4 requires States parties to take “all appropriate legislative, administrative and other measures” for implementation of the rights contained therein. While it is the State which takes on obligations under the Convention, its task of implementation - of making reality of the human rights of children - needs to engage all sectors of society and, of course, children themselves. Ensuring that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and appropriately enforced is fundamental. In addition, the Committee on the Rights of the Child has identified a wide range of measures that are needed for effective implementation, including the development of special structures and monitoring, training and other activities in Government, parliament and the judiciary at all levels.2 2. In its periodic examination of States parties’ reports under the Convention, the Committee pays particular attention to what it has termed “general measures of implementation”. In its concluding observations issued following examination, the Committee provides specific recommendations relating to general measures. It expects the State party to describe action taken in response to these recommendations in its subsequent periodic report. The Committee’s reporting guidelines arrange the Convention’s articles in clusters,3 the first being on “general measures of implementation” and groups article 4 with article 42 (the obligation to make the content of the Convention widely known to children and adults; see, paragraph 66 below) and article 44, paragraph 6 (the obligation to make reports widely available within the State; see paragraph 71 below). 3. In addition to these provisions, other general implementation obligations are set out in article 2: “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind …”. 4. Also under article 3, paragraph 2, “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”
50
1 The Committee reminds States parties that, for the purposes of the Convention, a child is defined as “every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier” (art. 1). 2 In 1999, the Committee on the Rights of the Child held a two-day workshop to commemorate the tenth anniversary of adoption of the Convention on the Rights of the Child by the United Nations General Assembly. The workshop focused on general measures of implementation following which the Committee adopted detailed conclusions and recommendations (see CRC/C/90, para. 291). 3 General Guidelines Regarding the Form and Content of Initial Reports to be Submitted by States Parties under Article 44, Paragraph 1 (a) of the Convention, CRC/C/5, 15 October 1991; General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted under Article 44, Paragraph 1 (b) of the Convention on the Rights of the Child, CRC/C/58, 20 November 1996.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 5. In international human rights law, there are articles similar to article 4 of the Convention, setting out overall implementation obligations, such as article 2 of the International Covenant on Civil and Political Rights and article 2 of the International Covenant on Economic, Social and Cultural Rights. The Human Rights Committee and the Committee on Economic, Social and Cultural Rights have issued general comments in relation to these provisions which should be seen as complementary to the present general comment and which are referred to below.4 6. Article 4, while reflecting States parties’ overall implementation obligation, suggests a distinction between civil and political rights and economic, social and cultural rights in its second sentence: “With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.” There is no simple or authoritative division of human rights in general or of Convention rights into the two categories. The Committee’s reporting guidelines group articles 7, 8, 13-17 and 37 (a) under the heading “Civil rights and freedoms”, but indicate by the context that these are not the only civil and political rights in the Convention. Indeed, it is clear that many other articles, including articles 2, 3, 6 and 12 of the Convention, contain elements which constitute civil/political rights, thus reflecting the interdependence and indivisibility of all human rights. Enjoyment of economic, social and cultural rights is inextricably intertwined with enjoyment of civil and political rights. As noted in paragraph 25 below, the Committee believes that economic, social and cultural rights, as well as civil and political rights, should be regarded as justiciable. 7. The second sentence of article 4 reflects a realistic acceptance that lack of resources - financial and other resources - can hamper the full implementation of economic, social and cultural rights in some States; this introduces the concept of “progressive realization” of such rights: States need to be able to demonstrate that they have implemented “to the maximum extent of their available resources” and, where necessary, have sought international cooperation. When States ratify the Convention, they take upon themselves obligations not only to implement it within their jurisdiction, but also to contribute, through international cooperation, to global implementation (see paragraph 60 below). 8. 8. The sentence is similar to the wording used in the International Covenant on Economic, Social and Cultural Rights and the Committee entirely concurs with the Committee on Economic, Social and Cultural Rights in asserting that “even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing 4 Human Rights Committee, general comment No. 3 (thirteenth session, 1981), Article 2: Implementation at the national level; Committee on Economic, Social and Cultural Rights, general comment No. 3 (fifth session, 1990), The nature of States parties’ obligations (article 2, paragraph 1, of the Covenant); also general comment No. 9 (nineteenth session, 1998), The domestic application of the Covenant, elaborating further on certain elements in general comment No. 3. A compendium of the treaty bodies’ general comments and recommendations is published regularly by the Office of the High Commissioner for Human Rights (HRI/GEN/1/Rev.6).
circumstances …”.5 Whatever their economic circumstances, States are required to undertake all possible measures towards the realization of the rights of the child, paying special attention to the most disadvantaged groups 9.The general measures of implementation identified by the Committee and described in the present general comment are intended to promote the full enjoyment of all rights in the Convention by all children, through legislation, the establishment of coordinating and monitoring bodies - governmental and independent - comprehensive data collection, awareness-raising and training and the development and implementation of appropriate policies, services and programmes. One of the satisfying results of the adoption and almost universal ratification of the Convention has been the development at the national level of a wide variety of new child focused and childsensitive bodies, structures and activities - children’s rights units at the heart of Government, ministers for children, inter-ministerial committees on children, parliamentary committees, child impact analysis, children’s budgets and “state of children’s rights” reports, NGO coalitions on children’s rights, children’s ombudspersons and children’s rights commissioners and so on. 10. While some of these developments may seem largely cosmetic, their emergence at the least indicates a change in the perception of the child’s place in society, a willingness to give higher political priority to children and an increasing sensitivity to the impact of governance on children and their human rights. 11. The Committee emphasizes that, in the context of the Convention, States must see their role as fulfilling clear legal obligations to each and every child. Implementation of the human rights of children must not be seen as a charitable process, bestowing favours on children. 5 General comment No. 3, HRI/GEN/1/Rev.6, para. 11, p. 16.
BI A CK N D E X
51
U PV EDR A TED SION 12. The development of a children’s rights perspective throughout Government, parliament and the judiciary is required for effective implementation of the whole Convention and, in particular, in the light of the following articles in the Convention identified by the Committee as general principles: Article 2: the obligation of States to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind. This non-discrimination obligation requires States actively to identify individual children and groups of children the recognition and realization of whose rights may demand special measures. For example, the Committee highlights, in particular, the need for data collection to be disaggregated to enable discrimination or potential discrimination to be identified. Addressing discrimination may require changes in legislation, administration and resource allocation, as well as educational measures to change attitudes. It should be emphasized that the application of the non discrimination principle of equal access to rights does not mean identical treatment. A general comment by the Human Rights Committee has underlined the importance of taking special measures in order to diminish or eliminate conditions that cause discrimination.6 Article 3 (1): the best interests of the child as a primary consideration in all actions concerning children. The article refers to actions undertaken by “public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. The principle requires active measures throughout Government, parliament and the judiciary. Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions - by, for example, a proposed or existing law or policy or administrative action or court decision, including those which are not directly concerned with children, but indirectly affect children. Article 6: the child’s inherent right to life and States parties’ obligation to ensure to the maximum extent possible the survival and development of the child. The Committee expects States to interpret “development” in its broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development. Implementation measures should be aimed at achieving the optimal development for all children. Article 12: the child’s right to express his or her views freely in “all matters affecting the child”, those views being given due weight. This principle, which highlights the role of the child as an active participant in the promotion, protection and monitoring of his or her rights, applies equally to all measures adopted by States to implement the Convention. Opening government decision-making processes to children is a positive challenge which the Committee finds 6 Human Rights Committee, general comment No. 18 (1989), HRI/GEN/1/ Rev.6, pp. 147 et seq. 52
States are increasingly responding to. Given that few States as yet have reduced the voting age below 18, there is all the more reason to ensure respect for the views of unenfranchised children in Government and parliament. If consultation is to be meaningful, documents as well as processes need to be made accessible. But appearing to “listen” to children is relatively unchallenging; giving due weight to their views requires real change. Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children’s rights. One-off or regular events like Children’s Parliaments can be stimulating and raise general awareness. But article 12 requires consistent and ongoing arrangements. Involvement of and consultation with children must also avoid being tokenistic and aim to ascertain representative views. The emphasis on “matters that affect them” in article 12 (1) implies the ascertainment of the views of particular groups of children on particular issues - for example children who have experience of the juvenile justice system on proposals for law reform in that area, or adopted children and children in adoptive families on adoption law and policy. It is important that Governments develop a direct relationship with children, not simply one mediated through non-governmental organizations (NGOs) or human rights institutions. In the early years of the Convention, NGOs had played a notable role in pioneering participatory approaches with children, but it is in the interests of both Governments and children to have appropriate direct contact.
REVIEW
OF RESERVATIONS 13. In its reporting guidelines on general measures of implementation, the Committee starts by inviting the State party to indicate whether it considers it necessary to maintain the reservations it has made, if any, or has the intention of withdrawing them.7 States parties to the Convention are entitled to make reservations at the time of their ratification of or accession to it (art. 51). The Committee’s aim of ensuring full and unqualified respect for the human rights of children can be achieved only if States withdraw their reservations. It consistently recommends during its examination of reports that reservations be reviewed and withdrawn. Where a State, after review, decides to maintain a reservation, the Committee requests that a full explanation be included in the next periodic report. The Committee draws the attention of States parties to the encouragement given by the World Conference on Human Rights to the review and withdrawal of reservations.8 14. 14. Article 2 of the Vienna Convention on the Law of Treaties defines “reservation” as a “unilateral statement, however phrased or named, made by a State, when signing, 7 General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted under Article 44, Paragraph 1 (b) of the Convention on the Rights of the Child, CRC/C/58, 20 November 1996, para. 11. 8 World Conference on Human Rights, Vienna, 14-25 June 1993, “Vienna Declaration and Programme of Action”, A/CONF.157/23.
BACK
KEYWORDS INDEX
U PV EDR A TED SION ratifying, accepting, approving or acceding to a Treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the Treaty in their application to that State”. The Vienna Convention notes that States are entitled, at the time of ratification or accession to a treaty, to make a reservation unless it is “incompatible with the object and purpose of the treaty” (art. 19). 15. Article 51, paragraph 2, of the Convention on the Rights of the Child reflects this: “A reservation incompatible with the object and purpose of the present Convention shall not be permitted”. The Committee is deeply concerned that some States have made reservations which plainly breach article 51 (2) by suggesting, for example, that respect for the Convention is limited by the State’s existing Constitution or legislation, including in some cases religious law. Article 27 of the Vienna Convention on the Law of Treaties provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. 16. 16. The Committee notes that, in some cases, States parties have lodged formal objections to such wideranging reservations made by other States parties. It commends any action which contributes to ensuring the fullest possible respect for the Convention in all States parties.
RAT I F I CAT I ON
OF OTHER KEY INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 17. As part of its consideration of general measures of implementation, and in the light of the principles of indivisibility and interdependence of human rights, the Committee consistently urges States parties, if they have not already done so, to ratify the two Optional Protocols to the Convention on the Rights of the Child (on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography) and the six other major international human rights instruments. During its dialogue with States parties the Committee often encourages them to consider ratifying other relevant international instruments. A non exhaustive list of these instruments is annexed to the present general comment, which the Committee will update from time to time.
LEGISLATIVE MEASURES
18. The Committee believes a comprehensive review of all domestic legislation and related administrative guidance to ensure full compliance with the Convention is an obligation. Its experience in examining not only initial but now second and third periodic reports under the Convention suggests that the review process at the national level has, in most cases, been started, but needs to be more rigorous. The review needs to consider the Convention not only article by article, but also holistically, recognizing the interdependence and indivisibility of human rights. The review needs to be continuous rather than one-off, reviewing proposed as well as existing legislation. And
while it is important that this review process should be built into the machinery of all relevant government departments, it is also advantageous to have independent review by, for example, parliamentary committees and hearings, national human rights institutions, NGOs, academics, affected children and young people and others. 19. States parties need to ensure, by all appropriate means, that the provisions of the Convention are given legal effect within their domestic legal systems. This remains a challenge in many States parties. Of particular importance is the need to clarify the extent of applicability of the Convention in States where the principle of “self-execution” applies and others where it is claimed that the Convention “has constitutional status” or has been incorporated into domestic law. 20. 20. The Committee welcomes the incorporation of the Convention into domestic law, which is the traditional approach to the implementation of international human rights instruments in some but not all States. Incorporation should mean that the provisions of the Convention can be directly invoked before the courts and applied by national authorities and that the Convention will prevail where there is a conflict with domestic legislation or common practice. Incorporation by itself does not avoid the need to ensure that all relevant domestic law, including any local or customary law, is brought into compliance with the Convention. In case of any conflict in legislation, predominance should always be given to the Convention, in the light of article 27 of the Vienna Convention on the Law of Treaties. Where a State delegates powers to legislate to federated regional or territorial governments, it must also require these subsidiary governments to legislate within the framework of the Convention and to ensure effective implementation (see also paragraphs 40 et seq. below). 21. Some States have suggested to the Committee that the inclusion in their Constitution of guarantees of rights for “everyone” is adequate to ensure respect for these rights for children. The test must be whether the applicable rights are truly realized for children and can be directly invoked before the courts. The Committee welcomes the inclusion of sections on the rights of the child in national constitutions, reflecting key principles in the Convention, which helps to underline the key message of the Convention - that children alongside adults are holders of human rights. But this inclusion does not automatically ensure respect for the rights of children. In order to promote the full implementation of these rights, including, where appropriate, the exercise of rights by children themselves, additional legislative and other measures may be necessary. 22. The Committee emphasizes, in particular, the importance of ensuring that domestic law reflects the identified general principles in the Convention (arts. 2, 3, 6 and 12 (see paragraph 12 above)). The Committee welcomes the development of consolidated children’s rights statutes, which can highlight and emphasize the Convention’s principles. But the Committee emphasizes that it is crucial in addition that all relevant “sectoral” laws (on education, health, justice and so on) reflect consistently the principles and standards of the Convention.
BI A CK N D E X
53
U PV EDR A TED SION 23. The Committee encourages all States parties to enact and implement within their jurisdiction legal provisions that are more conducive to the realization of the rights of the child than those contained in the Convention, in the light of article 41. The Committee emphasizes that the other international human rights instruments apply to all persons below the age of 18 years.
JUS TI C IABI LI T Y OF RIGHTS
24. For rights to have meaning, effective remedies must be available to redress violations. This requirement is implicit in the Convention and consistently referred to in the other six major international human rights treaties. Children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance. Where rights are found to have been breached, there should be appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by article 39. 25. As noted in paragraph 6 above, the Committee emphasizes that economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable. It is essential that domestic law sets out entitlements in sufficient detail to enable remedies for non-compliance to be effective.
AD MIN ISTRATIV E AND OTHER MEASURES
26. The Committee cannot prescribe in detail the measures which each or every State party will find appropriate to ensure effective implementation of the Convention. But from its first decade’s experience of examining States parties’ reports and from its ongoing dialogue with Governments and with the United Nations and United Nations-related agencies, NGOs and other competent bodies, it has distilled here some key advice for States. 27. The Committee believes that effective implementation of the Convention requires visible cross-sectoral coordination to recognize and realize children’s rights across Government, between different levels of government and between Government and civil society including in particular children and young people themselves. Invariably, many different government departments and other governmental or quasi-governmental bodies affect children’s lives and children’s enjoyment of their rights. Few, if any, government departments have no effect on children’s lives, direct or indirect. Rigorous monitoring of implementation is required, which should be built into the process of government at all levels but also independent monitoring by national human rights institutions, NGOs and others.
A. DEVELOPING A COMPREHENSIVE NATIONAL STRATEGY ROOTED IN THE CONVENTION 28. If Government as a whole and at all levels is to promote and respect the rights of the child, it needs to work on the basis of a unifying, comprehensive and rights-based national strategy, rooted in the Convention. 29. The Committee commends the development of a comprehensive national strategy or national plan of action for children, built on the framework of the Convention. The Committee expects States parties to take account of the recommendations in its concluding observations on their periodic reports when developing and/or reviewing their national strategies. If such a strategy is to be effective, it needs to relate to the situation of all children, and to all the rights in the Convention. It will need to be developed through a process of consultation, including with children and young people and those living and working with them. As noted above (para. 12), meaningful consultation with children requires special child-sensitive materials and processes; it is not simply about extending to children access to adult processes. 30. Particular attention will need to be given to identifying and giving priority to marginalized and disadvantaged groups of children. The non-discrimination principle in the Convention requires that all the rights guaranteed by the Convention should be recognized for all children within the jurisdiction of States. As noted above (para. 12), the non-discrimination principle does not prevent the taking of special measures to diminish discrimination.
54
BACK
KEYWORDS INDEX
U PV EDR A TED SION 31. To give the strategy authority, it will need to be endorsed at the highest level of government. Also, it needs to be linked to national development planning and included in national budgeting; otherwise, the strategy may remain marginalized outside key decision making processes. 32. The strategy must not be simply a list of good intentions; it must include a description of a sustainable process for realizing the rights of children throughout the State; it must go beyond statements of policy and principle, to set real and achievable targets in relation to the full range of economic, social and cultural and civil and political rights for all children. The comprehensive national strategy may be elaborated in sectoral national plans of action - for example for education and health - setting out specific goals, targeted implementation measures and allocation of financial and human resources. The strategy will inevitably set priorities, but it must not neglect or dilute in any way the detailed obligations which States parties have accepted under the Convention. The strategy needs to be adequately resourced, in human and financial terms. 33. Developing a national strategy is not a one-off task. Once drafted the strategy will need to be widely disseminated throughout Government and to the public, including children (translated into child-friendly versions as well as into appropriate languages and forms). The strategy will need to include arrangements for monitoring and continuous review, for regular updating and for periodic reports to parliament and to the public. 34. The “national plans of action” which States were encouraged to develop following the first World Summit for Children, held in 1990, were related to the particular commitments set by nations attending the Summit.9 In 1993, the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, called on States to integrate the Convention on the Rights of the Child into their national human rights action plans.10 35. The outcome document of the United Nations General Assembly special session on children, in 2002, also commits States “to develop or strengthen as a matter of urgency if possible by the end of 2003 national and, where appropriate, regional action plans with a set of specific time-bound and measurable goals and targets based on this plan of action …”.11 The Committee welcomes the commitments made by States to achieve the goals and targets set at the special session on children and identified in the outcome document, A World Fit for Children. But the Committee emphasizes that making particular commitments at global meetings does not in any way reduce States parties’ legal obligations under the Convention. Similarly, preparing specific plans of action in response to the special session does not reduce the need for a comprehensive implementation strategy for the Convention. States should integrate their response 9 World Summit for Children, “World Declaration on the Survival, Protection and Development of Children and Plan of Action for Implementing the World Declaration on the Survival, Protection and Development of Children in the 1990s”, CF/WSC/1990/WS-001, United Nations, New York, 30 September 1990. 10 World Conference on Human Rights, Vienna, 14-25 June 1993, “Vienna Declaration and Programme of Action”, A/CONF.157/23. 11 A World Fit for Children, outcome document of the United Nations General Assembly special session on children, 2002, para. 59.
to the 2002 special session and to other relevant global conferences into their overall implementation strategy for the Convention as a whole. 36. The outcome document also encourages States parties to “consider including in their reports to the Committee on the Rights of the Child information on measures taken and results achieved in the implementation of the present Plan of Action”.12 The Committee endorses this proposal; it is committed to monitoring progress towards meeting the commitments made at the special session and will provide further guidance in its revised guidelines for periodic reporting under the Convention.
B. COORDINATION OF IMPLEMENTATION OF CHILDREN’S RIGHTS 37. In examining States parties’ reports the Committee has almost invariably found it necessary to encourage further coordination of government to ensure effective implementation: coordination among central government departments, among different provinces and regions, between central and other levels of government and between Government and civil society. The purpose of coordination is to ensure respect for all of the Convention’s principles and standards for all children within the State jurisdiction; to ensure that the obligations inherent in ratification of or accession to the Convention are not only recognized by those large departments which have a substantial impact on children education, health or welfare and so on but right across Government, including for example departments concerned with finance, planning, employment and defence, and at all levels. 38. The Committee believes that, as a treaty body, it is not advisable for it to attempt to prescribe detailed arrangements appropriate for very different systems of government across States parties. There are many formal and informal ways of achieving effective coordination, including for example inter-ministerial and interdepartmental committees for children. The Committee proposes that States parties, if they have not already done so, should review the machinery of government from the perspective of implementation of the Convention and in particular of the four articles identified as providing general principles (see paragraph 12 above). 39. Many States parties have with advantage developed a specific department or unit close to the heart of Government, in some cases in the President’s or Prime Minister’s or Cabinet office, with the objective of coordinating implementation and children’s policy. As noted above, the actions of virtually all government departments impact on children’s lives. It is not practicable to bring responsibility for all children’s services together into a single department, and in any case doing so could have the danger of further marginalizing children in Government. But a special unit, if given high-level authority reporting directly, for example, to the Prime Minister, the President or a Cabinet Committee on children can contribute both to the overall purpose of making 12 Ibid., para. 61 (a).
BI A CK N D E X
55
U PV EDR A TED SION children more visible in Government and to coordination to ensure respect for children’s rights across Government and at all levels of Government. Such a unit can be given responsibility for developing the comprehensive children’s strategy and monitoring its implementation, as well as for coordinating reporting under the Convention.
C. DECENTRALIZATION, FEDERALIZATION AND DELEGATION 40. The Committee has found it necessary to emphasize to many States that decentralization of power, through devolution and delegation of government, does not in any way reduce the direct responsibility of the State party’s Government to fulfil its obligations to all children within its jurisdiction, regardless of the State structure. 41. The Committee reiterates that in all circumstances the State which ratified or acceded to the Convention remains responsible for ensuring the full implementation of the Convention throughout the territories under its jurisdiction. In any process of devolution, States parties have to make sure that the devolved authorities do have the necessary financial, human and other resources effectively to discharge responsibilities for the implementation of the Convention. The Governments of States parties must retain powers to require full compliance with the Convention by devolved administrations or local authorities and must establish permanent monitoring mechanisms to ensure that the Convention is respected and applied for all children within its jurisdiction without discrimination. Further, there must be safeguards to ensure that decentralization or devolution does not lead to discrimination in the enjoyment of rights by children in different regions.
D. PRIVATIZATION 42. 42. The process of privatization of services can have a serious impact on the recognition and realization of children’s rights. The Committee devoted its 2002 day of general discussion to the theme “The private sector as service provider and its role in implementing child rights”, defining the private sector as including businesses, NGOs and other private associations, both for profit and notfor-profit. Following that day of general discussion, the Committee adopted detailed recommendations to which it draws the attention of States parties.13 43. The Committee emphasizes that States parties to the Convention have a legal obligation to respect and ensure the rights of children as stipulated in the Convention, which includes the obligation to ensure that non-State service providers operate in accordance with its provisions, thus creating indirect obligations on such actors. 44. The Committee emphasizes that enabling the private sector to provide services, run institutions and so on does not in any way lessen the State’s obligation to ensure for all children within its jurisdiction the full recognition and realization of all rights in the Convention (arts. 2 (1) and 13 Committee on the Rights of the Child, Report on its thirty-first session, September October 2002, Day of General Discussion on “The private sector as service provider and its role in implementing child rights”, paras. 630-653. 56
3 (2)). Article 3 (1) establishes that the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private bodies. Article 3 (3) requires the establishment of appropriate standards by competent bodies (bodies with the appropriate legal competence), in particular, in the areas of health, and with regard to the number and suitability of staff. This requires rigorous inspection to ensure compliance with the Convention. The Committee proposes that there should be a permanent monitoring mechanism or process aimed at ensuring that all State and non-State service providers respect the Convention.
E. MONITORING IMPLEMENTATION THE NEED FOR CHILD IMPACT ASSESSMENT AND EVALUATION 45. Ensuring that the best interests of the child are a primary consideration in all actions concerning children (art. 3 (1)), and that all the provisions of the Convention are respected in legislation and policy development and delivery at all levels of government demands a continuous process of child impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual impact of implementation). This process needs to be built into government at all levels and as early as possible in the development of policy. 46. Self-monitoring and evaluation is an obligation for Governments. But the Committee also regards as essential the independent monitoring of progress towards implementation by, for example, parliamentary committees, NGOs, academic institutions, professional associations, youth groups and independent human rights institutions (see paragraph 65 below). 47. The Committee commends certain States which have adopted legislation requiring the preparation and presentation to parliament and/or the public of formal impact analysis statements. Every State should consider how it can ensure compliance with article 3 (1) and do so in a way which further promotes the visible integration of children in policy-making and sensitivity to their rights.
F. DATA COLLECTION AND ANALYSIS AND DEVELOPMENT OF INDICATORS 48. Collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realization of rights, is an essential part of implementation. The Committee reminds States parties that data collection needs to extend over the whole period of childhood, up to the age of 18 years. It also needs to be coordinated throughout the jurisdiction, ensuring nationally applicable indicators. States should collaborate with appropriate research institutes and aim to build up a complete picture of progress towards implementation, with qualitative as well as quantitative studies. The reporting guidelines for periodic reports call for detailed disaggregated statistical and other information covering
BACK
KEYWORDS INDEX
U PV EDR A TED SION all areas of the Convention. It is essential not merely to establish effective systems for data collection, but to ensure that the data collected are evaluated and used to assess progress in implementation, to identify problems and to inform all policy development for children. Evaluation requires the development of indicators related to all rights guaranteed by the Convention. 49. The Committee commends States parties which have introduced annual publication of comprehensive reports on the state of children’s rights throughout their jurisdiction. Publication and wide dissemination of and debate on such reports, including in parliament, can provide a focus for broad public engagement in implementation. Translations, including child-friendly versions, are essential for engaging children and minority groups in the process. 50. The Committee emphasizes that, in many cases, only children themselves are in a position to indicate whether their rights are being fully recognized and realized. Interviewing children and using children as researchers (with appropriate safeguards) is likely to be an important way of finding out, for example, to what extent their civil rights, including the crucial right set out in article 12, to have their views heard and given due consideration, are respected within the family, in schools and so on.
G. MAKING CHILDREN VISIBLE IN BUDGETS 51. In its reporting guidelines and in the consideration of States parties’ reports, the Committee has paid much attention to the identification and analysis of resources for children in national and other budgets.14 No State can tell whether it is fulfilling children’s economic, social and cultural rights “to the maximum extent of … available resources”, as it is required to do under article 4, unless it can identify the proportion of national and other budgets allocated to the social sector and, within that, to children, both directly and indirectly. Some States have claimed it is not possible to analyse national budgets in this way. But others have done it and publish annual “children’s budgets”. The Committee needs to know what steps are taken at all levels of Government to ensure that economic and social planning and decision-making and budgetary decisions are made with the best interests of children as a primary consideration and that children, including in particular marginalized and disadvantaged groups of children, are protected from the adverse effects of economic policies or financial downturns.
H. TRAINING AND CAPACITY-BUILDING 53. The Committee emphasizes States’ obligation to develop training and capacity-building for all those involved in the implementation process - government officials, parliamentarians and members of the judiciary - and for all those working with and for children. These include, for example, community and religious leaders, teachers, social workers and other professionals, including those working with children in institutions and places of detention, the police and armed forces, including peacekeeping forces, those working in the media and many others. Training needs to be systematic and ongoing initial training and re-training. The purpose of training is to emphasize the status of the child as a holder of human rights, to increase knowledge and understanding of the Convention and to encourage active respect for all its provisions. The Committee expects to see the Convention reflected in professional training curricula, codes of conduct and educational curricula at all levels. Understanding and knowledge of human rights must, of course, be promoted among children themselves, through the school curriculum and in other ways (see also paragraph 69 below and the Committee’s General Comment No. 1 (2001) on the aims of education). 54. The Committee’s guidelines for periodic reports mention many aspects of training, including specialist training, which are essential if all children are to enjoy their rights. The Convention highlights the importance of the family in its preamble and in many articles. It is particularly important that the promotion of children’s rights should be integrated into preparation for parenthood and parenting education. 55. There should be periodic evaluation of the effectiveness of training, reviewing not only knowledge of the Convention and its provisions but also the extent to which it has contributed to developing attitudes and practice which actively promote enjoyment by children of their rights.
52. Emphasizing that economic policies are never neutral in their effect on children’s rights, the Committee has been deeply concerned by the often negative effects on children of structural adjustment programmes and transition to a market economy. The implementation duties of article 4 and other provisions of the Convention demand rigorous monitoring of the effects of such changes and adjustment of policies to protect children’s economic, social and cultural rights. 14 General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted under Article 44, Paragraph 1(b), of the Convention on the Rights of the Child, CRC/C/58, 20 November 1996, para. 20.
BI A CK N D E X
57
U PV EDR A TED SION
C O O P ER AT I ON
IN TERN ATION AL
56. Implementation is an obligation for States parties, but needs to engage all sectors of society, including children themselves. The Committee recognizes that responsibilities to respect and ensure the rights of children extend in practice beyond the State and State-controlled services and institutions to include children, parents and wider families, other adults, and non State services and organizations. The Committee concurs, for example, with general comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard of health, paragraph 42, of which states: “While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society - individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector - have responsibilities regarding the realization of the right to health. States parties should therefore provide an environment which facilitates the discharge of these responsibilities.”
60. Article 4 emphasizes that implementation of the Convention is a cooperative exercise for the States of the world. This article and others in the Convention highlight the need for international cooperation.16 The Charter of the United Nations (Arts. 55 and 56) identifies the overall purposes of international economic and social cooperation, and members pledge themselves under the Charter “to take joint and separate action in cooperation with the Organization” to achieve these purposes. In the United Nations Millennium Declaration and at other global meetings, including the United Nations General Assembly special session on children, States have pledged themselves, in particular, to international cooperation to eliminate poverty.
WITH CIVIL SOCIETY
COOPERATION
57. Article 12 of the Convention, as already emphasized (see paragraph 12 above), requires due weight to be given to children’s views in all matters affecting them, which plainly includes implementation of “their” Convention. 58. The State needs to work closely with NGOs in the widest sense, while respecting their autonomy; these include, for example, human rights NGOs, child- and youth-led organizations and youth groups, parent and family groups, faith groups, academic institutions and professional associations. NGOs played a crucial part in the drafting of the Convention and their involvement in the process of implementation is vital. 59. The Committee welcomes the development of NGO coalitions and alliances committed to promoting, protecting and monitoring children’s human rights and urges Governments to give them non-directive support and to develop positive formal as well as informal relationships with them. The engagement of NGOs in the reporting process under the Convention, coming within the definition of “competent bodies” under article 45 (a), has in many cases given a real impetus to the process of implementation as well as reporting. The NGO Group for the Convention on the Rights of the Child has a very welcome, strong and supportive impact on the reporting process and other aspects of the Committee’s work. The Committee underlines in its reporting guidelines that the process of preparing a report “should encourage and facilitate popular participation and public scrutiny of government policies”.15 The media can be valuable partners in the process of implementation (see also paragraph 70).
15 Ibid., para. 3. 58
61. The Committee advises States parties that the Convention should form the framework for international development assistance related directly or indirectly to children and that programmes of donor States should be rights-based. The Committee urges States to meet internationally agreed targets, including the United Nations target for international development assistance of 0.7 per cent of gross domestic product. This goal was reiterated along with other targets in the Monterrey Consensus, arising from the 2002 International Conference on Financing for Development.17 The Committee encourages States parties that receive international aid and assistance to allocate a substantive part of that aid specifically to children. The Committee expects States parties to be able to identify on a yearly basis the amount and proportion of international support earmarked for the implementation of children’s rights. 62. The Committee endorses the aims of the 20/20 initiative, to achieve universal access to basic social services of good quality on a sustainable basis, as a shared responsibility of developing and donor States. The Committee notes that international meetings held to review progress have concluded that many States are going to have difficulty meeting fundamental economic and social rights unless additional resources are allocated and efficiency in resource allocation is increased. The Committee takes note of and encourages efforts being made to reduce poverty in the most heavily indebted countries through the Poverty Reduction Strategy Paper (PRSP). As the central, countryled strategy for achieving the millennium development goals, PRSPs must include a strong focus on children’s rights. The Committee urges Governments, donors and civil society to ensure that children are a prominent priority in the development of PRSPs and sectorwide approaches to development (SWAps). Both PRSPs and SWAps should reflect children’s rights principles, with a holistic, childcentred approach recognizing children as holders of rights and the incorporation of development goals and objectives which are relevant to children. 16 The following articles of the Convention relate to international cooperation explicitly: articles 7 (2); 11 (2); 17 (b); 21 (e); 22 (2); 23 (4); 24 (4); 27 (4); 28 (3); 34 and 35. 17 Report of the International Conference on Financing for Development, Monterrey, Mexico, 18 22 March 2002 (A/Conf.198/11).
BACK
KEYWORDS INDEX
U PV EDR A TED SION
63. The Committee encourages States to provide and to use, as appropriate, technical assistance in the process of implementing the Convention. The United Nations Children’s Fund (UNICEF), the Office of the High Commissioner for Human Rights (OHCHR) and other United Nations and United Nations related agencies can provide technical assistance with many aspects of implementation. States parties are encouraged to identify their interest in technical assistance in their reports under the Convention. 64. In their promotion of international cooperation and technical assistance, all United Nations and United Nationsrelated agencies should be guided by the Convention and should mainstream children’s rights throughout their activities. They should seek to ensure within their influence that international cooperation is targeted at supporting States to fulfil their obligations under the Convention. Similarly the World Bank Group, the International Monetary Fund and World Trade Organization should ensure that their activities related to international cooperation and economic development give primary consideration to the best interests of children and promote full implementation of the Convention.
K. INDEPENDENT HUMAN RIGHTS INSTITUTIONS 65. In its general comment No. 2 (2002) entitled “The role of independent national human rights institutions in the protection and promotion of the rights of the child”, the Committee notes that it “considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights”. Independent human rights institutions are complementary to effective government structures for children; the essential element is independence: “The role of national human rights institutions is to monitor independently the State’s compliance and progress towards implementation and to do all it can to ensure full respect for children’s rights. While this may require the institution to develop projects to enhance the promotion and protection of children’s rights, it should not lead to the Government delegating its monitoring obligations to the national institution. It is essential that institutions remain entirely free to set their own agenda and determine their own activities.”18 General comment No. 2 provides detailed guidance on the establishment and operation of independent human rights institutions for children. 18 HRI/GEN/1/Rev. 6, para. 25, p. 295.
Article 42: Making the Convention known to adults and children. “States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.” 66. Individuals need to know what their rights are. Traditionally in most, if not all, societies children have not been regarded as rights holders. So article 42 acquires a particular importance. If the adults around children, their parents and other family members, teachers and carers do not understand the implications of the Convention, and above all its confirmation of the equal status of children as subjects of rights, it is most unlikely that the rights set out in the Convention will be realized for many children. 67. The Committee proposes that States should develop a comprehensive strategy for disseminating knowledge of the Convention throughout society. This should include information on those bodies - governmental and independent - involved in implementation and monitoring and on how to contact them. At the most basic level, the text of the Convention needs to be made widely available in all languages (and the Committee commends the collection of official and unofficial translations of the Convention made by OHCHR. There needs to be a strategy for dissemination of the Convention among illiterate people. UNICEF and NGOs in many States have developed child-friendly versions of the Convention for children of various ages - a process the Committee welcomes and encourages; these should also inform children of sources of help and advice. 68. Children need to acquire knowledge of their rights and the Committee places special emphasis on incorporating learning about the Convention and human rights in general into the school curriculum at all stages. The Committee’s general comment No. 1 (2001) entitled “The aims of education” (art. 29, para. 1), should be read in conjunction with this. Article 29, paragraph 1, requires that the education of the child shall be directed to “… the development of respect for human rights and fundamental freedoms … ”. The general comment underlines: “Human rights education should provide information on the content of human rights treaties. But children should also learn about human rights by seeing human rights standards implemented in practice whether at home, in
BI A CK N D E X
59
U PV EDR A TED SION school or within the community. Human rights education should be a comprehensive, lifelong process and start with the reflection of human rights values in the daily life and experiences of children.”19 69. 69. Similarly, learning about the Convention needs to be integrated into the initial and in service training of all those working with and for children (see paragraph 53 above). The Committee reminds States parties of the recommendations it made following its meeting on general measures of implementation held to commemorate the tenth anniversary of adoption of the Convention, in which it recalled that “dissemination and awareness-raising about the rights of the child are most effective when conceived as a process of social change, of interaction and dialogue rather than lecturing. Raising awareness should involve all sectors of society, including children and young people. Children, including adolescents, have the right to participate in raising awareness about their rights to the maximum extent of their evolving capacities”.20
73. The Convention explicitly requires States to make their reports widely available to the public; this should be done when they are submitted to the Committee. Reports should be made genuinely accessible, for example through translation into all languages, into appropriate forms for children and for people with disabilities and so on. The Internet may greatly aid dissemination, and Governments and parliaments are strongly urged to place such reports on their web sites.
“The Committee recommends that all efforts to provide training on the rights of the child be practical, systematic and integrated into regular professional training in order to maximize its impact and sustainability. Human rights training should use participatory methods, and equip professionals with skills and attitudes that enable them to interact with children and young people in a manner that respects their rights, dignity and self respect.”21 70. 70. The media can play a crucial role in the dissemination of the Convention and knowledge and understanding of it and the Committee encourages their voluntary engagement in the process, which may be stimulated by governments and by NGOs.22 Article 44 (6): Making reports under the Convention widely available “… States Parties shall make their reports widely available to the public in their own countries.” 71. If reporting under the Convention is to play the important part it should in the process of implementation at the national level, it needs to be known about by adults and children throughout the State party. The reporting process provides a unique form of international accountability for how States treat children and their rights. But unless reports are disseminated and constructively debated at the national level, the process is unlikely to have substantial impact on children’s lives. 72. The Convention explicitly requires States to make their reports widely available to the public; this should be done when they are submitted to the Committee. Reports should be made genuinely accessible, for example through translation into all languages, into appropriate forms for children and for people with disabilities and so on. The Internet may greatly aid dissemination, and Governments and parliaments are strongly urged to place such reports on their web sites. 19 Ibid., para. 15, p. 286. 20 See CRC/C/90, para. 291 (k). 21 Ibid., para. 291 (l). 22 The Committee held a day of general discussion on the theme “The child and the media” in 1996, adopting detailed recommendations (see CRC/C/57, paras. 242 et seq.). 60
BACK
KEYWORDS INDEX
U PV EDR A TED SION
ILO Convention No. 105 on Abolition of Forced Labour, 1957; ILO Convention No. 138 Concerning Minimum Age for Admission to Employment, 1973; ILO Convention No. 182 on Worst Forms of Child Labour, 1999; ILO Convention No. 183 on Maternity Protection, 2000; Convention relating to the Status of Refugees of 1951, as amended by the Protocol relating to the Status of Refugees of 1967; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949); Slavery Convention (1926);
ANNEX I
Protocol amending the Slavery Convention (1953);
RATIFICATION OF OTHER KEY INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956);
As noted in paragraph 17 of the present general comment, the Committee on the Rights of the Child, as part of its consideration of general measures of implementation, and in the light of the principles of indivisibility and interdependence of human rights, consistently urges States parties, if they have not already done so, to ratify the two Optional Protocols to the Convention on the Rights of the Child (on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography) and the six other major international human rights instruments. During its dialogue with States parties the Committee often encourages them to consider ratifying other relevant international instruments. A non exhaustive list of these instruments is annexed here. The Committee will update this from time to time. Optional Protocol to the International Covenant on Civil and Political Rights; Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty; Optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women; Optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention against Discrimination in Education; ILO Forced Labour Convention No. 29, 1930;
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 2000; Geneva Convention relative to the Protection of Civilians in Time of War; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti personnel Mines and of Their Destruction; Statute of the International Criminal Court; Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption; Hague Convention on the Civil Aspects of International Child Abduction; Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children of 1996.
BI A CK N D E X
61
U PV EDR A TED SION
Number 6
BI A CK N D E X
63
U PV EDR A TED SION
O B JEC T I VES
OF THE GENERAL COMMENT 1. The objective of this general comment is to draw attention to the particularly vulnerable situation of unaccompanied and separated children; to outline the multifaceted challenges faced by States and other actors in ensuring that such children are able to access and enjoy their rights; and, to provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child (the “Convention”), with particular reference to the principles of non-discrimination, the best interests of the child and the right of the child to express his or her views freely. 2. The issuing of this general comment is motivated by the Committee’s observation of an increasing number of children in such situations. There are varied and numerous reasons for a child being unaccompanied or separated, including: persecution of the child or the parents; international conflict and civil war; trafficking in various contexts and forms, including sale by parents; and the search for better economic opportunities. 3. The issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of such children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention. They are often discriminated against and denied access to food, shelter, housing, health services and education. Unaccompanied and separated girls are at particular risk of genderbased violence, including domestic violence. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials. In other cases they are admitted but are denied access to asylum procedures or their asylum claims are not handled in an age and gendersensitive manner. Some countries prohibit separated children who are recognized as refugees from applying for family reunification; others permit reunification but impose conditions so restrictive as to make it virtually impossible to achieve. Many such children are granted only temporary status, which ends when they turn 18, and there are few effective return programmes. 4. Concerns such as these have led the Committee to frequently raise issues related to unaccompanied and separated children in its concluding observations. This general comment will compile and consolidate standards developed, inter alia, through the Committee’s monitoring efforts and shall thereby provide clear guidance to States on the obligations deriving from the Convention with regard to this particular vulnerable group of children. In applying these standards, States parties must be cognizant of their 64
evolutionary character and therefore recognize that their obligations may develop beyond the standards articulated herein. These standards shall in no way impair furtherreaching rights and benefits offered to unaccompanied and separated children under regional human rights instruments or national systems, international and regional refugee law or international humanitarian law.
STRUCTURE
AND SCOPE OF THE GENERAL COMMENT 5. This general comment applies to unaccompanied and separated children who find themselves outside their country of nationality (consistent with article 7) or, if stateless, outside their country of habitual residence. The general comment applies to all such children irrespective of their residence status and reasons for being abroad, and whether they are unaccompanied or separated. However, it does not apply to children who have not crossed an international border, even though the Committee acknowledges the many similar challenges related to internally displaced unaccompanied and separated children, recognizes that much of the guidance offered below is also valuable in relation to such children, and strongly encourages States to adopt relevant aspects of this general comment in relation to the protection, care and treatment of unaccompanied and separated children who are displaced within their own country. 6. While the mandate of the Committee is confined to its supervisory function in relation to the Convention, its interpretation efforts must be conducted in the context of the entirety of applicable international human rights norms and, therefore, the general comment adopts a holistic approach to the question of the proper treatment of unaccompanied and separated children. This acknowledges that all human rights, including those contained in the Convention, are indivisible and interdependent. The importance of other international human rights instruments to the protection of the child is also recognized in the preamble to the Convention.
DEFINITIONS 7. “Unaccompanied children” (also called unaccompanied minors) are children, as defined in article 1 of the Convention, who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so. 8. “Separated children” are children, as defined in article 1 of the Convention, who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include children accompanied by other
BACK
KEYWORDS INDEX
U PV EDR A TED SION adult family members. 9. A “child as defined in article 1 of the Convention”, means “every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”. This means that any instruments governing children in the territory of the State cannot define a child in any way that deviates from the norms determining the age of majority in that State. 10. If not otherwise specified, the guidelines below apply equally to both unaccompanied and separated children. 11. “Country of origin” is the country of nationality or, in the case of a stateless child, the country of habitual residence.
APPLICABLE PRINCIPLES a) Legal obligations of States parties for all unaccompanied or separated children in their territory and measures for their implementation 12. State obligations under the Convention apply to each child within the State’s territory and to all children subject to its jurisdiction (art. 2). These State obligations cannot be arbitrarily and unilaterally curtailed either by excluding zones or areas from a State’s territory or by defining particular zones or areas as not, or only partly, under the jurisdiction of the State. Moreover, State obligations under the Convention apply within the borders of a State, including with respect to those children who come under the State’s jurisdiction while attempting to enter the country’s territory. Therefore, the enjoyment of rights stipulated in the Convention is not limited to children who are citizens of a State party and must therefore, if not explicitly stated otherwise in the Convention, also be available to all children - including asylum-seeking, refugee and migrant children - irrespective of their nationality, immigration status or statelessness. 13. Obligations deriving from the Convention vis-àvis unaccompanied and separated children apply to all branches of government (executive, legislative and judicial). They include the obligation to establish national legislation; administrative structures; and the necessary research, information, data compilation and comprehensive training activities to support such measures. Such legal obligations are both negative and positive in nature, requiring States not only to refrain from measures infringing on such children’s rights, but also to take measures to ensure the enjoyment of these rights without discrimination. Such responsibilities are not only limited to the provision of protection and assistance to children who are already unaccompanied or separated, but include measures to prevent separation (including the implementation of safeguards in case of evacuation). The positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify children as being unaccompanied or separated at the earliest possible stage, including at the border, to carry out tracing activities and, where possible and if in the child’s best interest, to
reunify separated and unaccompanied children with their families as soon as possible. 14. As reaffirmed in its general comment No. 5 (2003) (paras. 18-23), States parties to the Convention have to ensure that the provisions and principles of the treaty are fully reflected and given legal effect in relevant domestic legislation. In case of any conflict in legislation, predominance should always be given to the Convention, in light of article 27 of the Vienna Convention on the Law of Treaties. 15. In order to ensure a conducive legal environment and in light of article 41 (b) of the Convention, States parties are also encouraged to ratify other international instruments that address issues relating to unaccompanied and separated children, including the two Optional Protocols to the Convention on the Rights of the Child (on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”), the Convention on the Elimination of All Forms of Discrimination against Women, the Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) and the Protocol relating to the Status of Refugees, the Convention on the Reduction of Statelessness, the Convention relating to the Status of Stateless Persons, the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, the four Geneva Conventions of 12 August 1949, the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1997. The Committee also encourages States parties to the Convention and others concerned to take into account the Office of the United Nations High Commissioner for Refugees (UNHCR)’s Guidelines on Protection and Care (1994) and the Inter-Agency Guiding Principles on Unaccompanied and Separated Children.1 16. In view of the absolute nature of obligations deriving from the Convention and their lex specialis character, article 2, paragraph 3, of the International Covenant on Economic, Social and Cultural Rights would not apply with regard to unaccompanied and separated children. In application of article 4 of the Convention, the particular vulnerability of unaccompanied and separated children, explicitly recognized in article 20 of the Convention, must be taken into account and will result in making the assignment of available resources to such children a priority. States are expected to accept and facilitate assistance offered within their respective mandates by the United Nations Children’s Fund (UNICEF), UNHCR and other agencies (article 22 1 These Guiding Principles are jointly endorsed by the International Committee of the Red Cross, the International Rescue Committee, Save the Children/UK, UNICEF, UNHCR, and World Vision International. They are intended to guide the work of all members of the Inter Agency Standing Committee with respect to unaccompanied and separated children.
BI A CK N D E X
65
U PV EDR A TED SION (2) of the Convention) in order to meet the needs of unaccompanied and separated children. 17. The Committee believes that reservations made by States parties to the Convention should not in any way limit the rights of unaccompanied and separated children. As is systematically done with States parties during the reporting process, the Committee recommends that, in the light of the Vienna2 Declaration and Programme of Action adopted at the 1993 World Conference on Human Rights in Vienna, reservations limiting the rights of unaccompanied and separated children be reviewed with the objective of withdrawal. b) Non-discrimination (art. 2) 18. The principle of non-discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child as being unaccompanied or separated, or as being a refugee, asylum seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender. Measures should also be taken to address possible misperceptions and stigmatization of unaccompanied or separated children within the society. Policing or other measures concerning unaccompanied or separated children relating to public order are only permissible where such measures are based on the law; entail individual rather than collective assessment; comply with the principle of proportionality; and represent the least intrusive option. In order not to violate the prohibition on non-discrimination, such measures can, therefore, never be applied on a group or collective basis. c) Best interests of the child as a primary consideration in the search for short and long-term solutions (art. 3) 19. Article 3 (1) states that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. In the case of a displaced child, the principle must be respected during all stages of the displacement cycle. At any of these stages, a best interests determination must be documented in preparation of any decision fundamentally impacting on the unaccompanied or separated child’s life. 20. A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to the territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gendersensitive interviewing techniques. 2 Vienna Declaration and Programme of Action (A/CONF.157/23) adopted by the World Conference on Human Rights, held in Vienna, 14-25 June 1993. 66
21. Subsequent steps, such as the appointment of a competent guardian as expeditiously as possible, serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied or separated child. Therefore, such a child should only be referred to asylum or other procedures after the appointment of a guardian. In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian. 22. Respect for best interests also requires that, where competent authorities have placed an unaccompanied or separated child “for the purposes of care, protection or treatment of his or her physical or mental health”, the State recognizes the right of that child to a “periodic review” of their treatment and “all other circumstances relevant to his or her placement” (article 25 of the Convention). d) The right to life, survival and development (art. 6) 23. The obligation of the State party under article 6 includes protection from violence and exploitation, to the maximum extent possible, which would jeopardize a child’s right to life, survival and development. Separated and unaccompanied children are vulnerable to various risks that affect their life, survival and development such as trafficking for purposes of sexual or other exploitation or involvement in criminal activities which could result in harm to the child, or in extreme cases, in death. Accordingly, article 6 necessitates vigilance by States parties in this regard, particularly when organized crime may be involved. While the issue of trafficking of children is beyond the scope of this general comment, the Committee notes that there is often a link between trafficking and the situation of separated and unaccompanied children. 24. The Committee is of the view that practical measures should be taken at all levels to protect children from the risks mentioned above. Such measures could include: priority procedures for child victims of trafficking, the prompt appointment of guardians, the provision of information to children about the risks they may encounter, and establishment of measures to provide follow-up to children particularly at risk. These measures should be regularly evaluated to ensure their effectiveness. e) Right of the child to express his or her views freely (art. 12) 25. Pursuant to article 12 of the Convention, in determining the measures to be adopted with regard to unaccompanied or separated children, the child’s views and wishes should be elicited and taken into account (art. 12 (1)). To allow for a well-informed expression of such views and wishes, it is imperative that such children are provided with all relevant information concerning, for example, their entitlements, services available including means of communication, the asylum process, family tracing and the situation in their country of origin (arts. 13, 17 and 22 (2)). In guardianship, care and accommodation arrangements, and legal representation, children’s views should also be taken into account. Such information must be provided in a manner that is appropriate to the maturity and level of
BACK
KEYWORDS INDEX
U PV EDR A TED SION understanding of each child. As participation is dependent on reliable communication, where necessary, interpreters should be made available at all stages of the procedure. f) Respect for the principle of non-refoulement 26. In affording proper treatment of unaccompanied or separated children, States must fully respect nonrefoulement obligations deriving from international human rights, humanitarian and refugee law and, in particular, must respect obligations codified in article 33 of the 1951 Refugee Convention and in article 3 of CAT. 27. Furthermore, in fulfilling obligations under the Convention, States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention, either in the country to which removal is to be effected or in any country to which the child may subsequently be removed. Such nonrefoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate from non-State actors or whether such violations are directly intended or are the indirect consequence of action or inaction. The assessment of the risk of such serious violations should be conducted in an age and gender-sensitive manner and should, for example, take into account the particularly serious consequences for children of the insufficient provision of food or health services. 28. As underage recruitment and participation in hostilities entails a high risk of irreparable harm involving fundamental human rights, including the right to life, State obligations deriving from article 38 of the Convention, in conjunction with articles 3 and 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entail extraterritorial effects and States shall refrain from returning a child in any manner whatsoever to the borders of a State where there is a real risk of underage recruitment, including recruitment not only as a combatant but also to provide sexual services for the military or where there is a real risk of direct or indirect participation in hostilities, either as a combatant or through carrying out other military duties.
the child’s family members. Furthermore, information relating to the whereabouts of the child shall only be withheld vis-à-vis the parents where required for the safety of the child or to otherwise secure the “best interests” of the child.
RESPONSE
TO GENERAL AND SPECIFIC PROTECTION NEEDS a) Initial assessment and measures 31. The best interests of the child must also be a guiding principle for determining the priority of protection needs and the chronology of measures to be applied in respect of unaccompanied and separated children. This necessary initial assessment process, in particular, entails the following: i) Prioritized identification of a child as separated or unaccompanied immediately upon arrival at ports of entry or as soon as their presence in the country becomes known to the authorities (art. 8). Such identification measures include age assessment and should not only take into account the physical appearance of the individual, but also his or her psychological maturity. Moreover, the assessment must be conducted in a scientific, safe, child and gender-sensitive and fair manner, avoiding any risk of violation of the physical integrity of the child; giving due respect to human dignity; and, in the event of remaining uncertainty, should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a child, she or he should be treated as such; ii) Prompt registration by means of an initial interview conducted in an age appropriate and gender-sensitive manner, in a language the child understands, by professionally qualified persons to collect biodata and social history to ascertain the identity of the child, including, wherever possible, identity of both parents, other siblings, as well as the citizenship of the child, the siblings and the parents;
g) Confidentiality 29. States parties must protect the confidentiality of information received in relation to an unaccompanied or separated child, consistent with the obligation to protect the child’s rights, including the right to privacy (art. 16). This obligation applies in all settings, including health and social welfare. Care must be taken that information sought and legitimately shared for one purpose is not inappropriately used for that of another. 30. Confidentiality concerns also involve respect for the rights of others. For example, in obtaining, sharing and preserving the information collected in respect of unaccompanied and separated children, particular care must be taken in order not to endanger the well-being of persons still within the child’s country of origin, especially
BI A CK N D E X
67
U PV EDR A TED SION iii) In continuation of the registration process, the recording of further information in order to meet the specific needs of the child. This information should include: - Reasons for being separated or unaccompanied; - Assessment of particular vulnerabilities, including health, physical, psychosocial, material and other protection needs, including those deriving from domestic violence, trafficking or trauma; - All available information to determine the potential existence of international protection needs, including those: due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” in the child’s country of origin (article 1 A (2), 1951 Refugee Convention); deriving from external aggression, occupation, foreign domination or events seriously disturbing public order (article 1 (2), Convention Governing the Specific Aspects of Refugee Problems in Africa); or relating to the indiscriminate effects of generalized violence; iv) Unaccompanied and separated children should be provided with their own personal identity documentation as soon as possible; v) (v) Tracing of family members to be commenced as early as possible (arts. 22 (2), 9 (3) and 10 (2)). 32. Any further actions relating to the residence and other status of the child in the territory of the State should be based on the findings of an initial protection assessment carried out in accordance with the above procedures. States should refrain from referring unaccompanied and separated children into asylum procedures if their presence in the territory does not raise the question of international refugee protection needs. This is without prejudice to the obligation of States to refer unaccompanied or separated children to relevant procedures serving child protection, such as those foreseen under child welfare legislation. b) Appointment of a guardian or adviser and legal representative (arts. 18 (2) and 20 (1)) 33. States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests. Therefore, States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or jurisdiction of the State, in compliance with the Convention and other international obligations. The guardian should be consulted and informed regarding all actions taken in relation to the child. The guardian should have the authority to be present in all planning and decisionmaking processes, including immigration and appeal hearings, care arrangements and all efforts to search for a durable solution. The guardian or adviser should have the necessary expertise in the field of childcare, so as to ensure that the interests of the child are safeguarded and that the child’s legal, social, health, psychological, material and educational needs are appropriately covered by, inter alia, the guardian acting as a link between the child and existing specialist agencies/individuals who provide the continuum 68
of care required by the child. Agencies or individuals whose interests could potentially be in conflict with those of the child’s should not be eligible for guardianship. For example, non-related adults whose primary relationship to the child is that of an employer should be excluded from a guardianship role. 34. In the case of a separated child, guardianship should regularly be assigned to the accompanying adult family member or non-primary family caretaker unless there is an indication that it would not be in the best interests of the child to do so, for example, where the accompanying adult has abused the child. In cases where a child is accompanied by a non family adult or caretaker, suitability for guardianship must be scrutinized more closely. If such a guardian is able and willing to provide day-to-day care, but unable to adequately represent the child’s best interests in all spheres and at all levels of the child’s life, supplementary measures (such as the appointment of an adviser or legal representative) must be secured. 35. Review mechanisms shall be introduced and implemented to monitor the quality of the exercise of guardianship in order to ensure the best interests of the child are being represented throughout the decisionmaking process and, in particular, to prevent abuse. 36. In cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation. 37. At all times children should be informed of arrangements with respect to guardianship and legal representation and their opinions should be taken into consideration. 38. In large-scale emergencies, where it will be difficult to establish guardianship arrangements on an individual basis, the rights and best interests of separated children should be safeguarded and promoted by States and organizations working on behalf of these children. c) Care and accommodation arrangements (arts. 20 and 22) 39. Unaccompanied or separated children are children temporarily or permanently deprived of their family environment and, as such, are beneficiaries of States’ obligations under article 20 of the Convention and shall be entitled to special protection and assistance provided by the relevant State. 40. Mechanisms established under national law in order to ensure alternative care for such children in accordance with article 22 of the Convention, shall also cover unaccompanied or separated children outside their country of origin. A wide range of options for care and accommodation arrangements exist and are explicitly acknowledged in article 20 (3) as follows: “… inter alia, foster placement, kafalah of Islamic law, adoption or, if necessary, placement in suitable institutions for the care of children”. When selecting from these options, the particular vulnerabilities of such a child, not only having lost connection with his or her family environment, but further finding him or
BACK
KEYWORDS INDEX
U PV EDR A TED SION
herself outside of his or her country of origin, as well as the child’s age and gender, should be taken into account. In particular, due regard ought to be taken of the desirability of continuity in a child’s upbringing and to the ethnic, religious, cultural and linguistic background as assessed in the identification, registration and documentation process. Such care and accommodation arrangements should comply with the following parameters: - Children should not, as a general rule, be deprived of liberty; - In order to ensure continuity of care and considering the best interests of the child, changes in residence for unaccompanied and separated children should be limited to instances where such change is in the best interests of the child; - In accordance with the principle of family unity, siblings should be kept together; - A child who has adult relatives arriving with him or her or already living in the country of asylum should be allowed to stay with them unless such action would be contrary to the best interests of the child. Given the particular vulnerabilities of the child, regular assessments should be conducted by social welfare personnel; - Irrespective of the care arrangements made for unaccompanied or separated children, regular supervision and assessment ought to be maintained by qualified persons in order to ensure the child’s physical and psychosocial health, protection against domestic violence or exploitation, and access to educational and vocational skills and opportunities; - States and other organizations must take measures to ensure the effective protection of the rights of separated or unaccompanied children living in child-headed households; - In large-scale emergencies, interim care must be provided for the shortest time appropriate for unaccompanied children. This interim care provides for their security and physical and emotional care in a setting that encourages their general development; - Children must be kept informed of the care arrangements being made for them, and their opinions must be taken into consideration. d) Full access to education (arts. 28, 29 (1) (c), 30 and 32) 41. States should ensure that access to education is maintained during all phases of the displacement cycle. Every unaccompanied and separated child, irrespective of status, shall have full access to education in the country that they have entered in line with articles 28, 29 (1) (c), 30 and 32 of the Convention and the general principles developed by the Committee. Such access should be granted without discrimination and in particular, separated and unaccompanied girls shall have equal access to formal
and informal education, including vocational training at all levels. Access to quality education should also be ensured for children with special needs, in particular children with disabilities. 42. The unaccompanied or separated child should be registered with appropriate school authorities as soon as possible and get assistance in maximizing learning opportunities. All unaccompanied and separated children have the right to maintain their cultural identity and values, including the maintenance and development of their native language. All adolescents should be allowed to enrol in vocational/professional training or education, and early learning programmes should be made available to young children. States should ensure that unaccompanied or separated children are provided with school certificates or other documentation indicating their level of education, in particular in preparation of relocation, resettlement or return. 43. States shall, in particular where government capacity is limited, accept and facilitate the assistance offered by UNICEF, the United Nations Educational, Scientific and Cultural Organization (UNESCO), UNHCR and other United Nations agencies within their respective mandates, as well as, where appropriate, other competent intergovernmental organizations or non-governmental organizations (art. 22 (2)) in order to meet the educational needs of unaccompanied and separated children. e) Right to an adequate standard of living (art. 27) 44. States should ensure that separated and unaccompanied children have a standard of living adequate for their physical, mental, spiritual and moral development. As provided in article 27 (2) of the Convention, States shall provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. 45. States shall, in particular where government capacity is limited, accept and facilitate the assistance offered by UNICEF, UNESCO, UNHCR and other United Nations agencies within their respective mandates, as well as, where appropriate, other competent intergovernmental organizations or non-governmental organizations (art. 22 (2)) in order to secure an adequate standard of living for unaccompanied and separated children.
BI A CK N D E X
69
U PV EDR A TED SION f) Right to enjoy the highest attainable standard of health and facilities for the treatment of illness and rehabilitation of health (arts. 23, 24 and 39) 46. When implementing the right to enjoy the highest attainable standard of health and facilities for the treatment of illness and rehabilitation of health under article 24 of the Convention, States are obligated to ensure that unaccompanied and separated children have the same access to health care as children who are ... nationals. 47. In ensuring their access, States must assess and address the particular plight and vulnerabilities of such children. They should, in particular, take into account the fact that unaccompanied children have undergone separation from family members and have also, to varying degrees, experienced loss, trauma, disruption and violence. Many such children, in particular those who are refugees, have further experienced pervasive violence and the stress associated with a country afflicted by war. This may have created deep-rooted feelings of helplessness and undermined a child’s trust in others. Moreover, girls are particularly susceptible to marginalization, poverty and suffering during armed conflict, and many may have experienced gender-based violence in the context of armed conflict. The profound trauma experienced by many affected children calls for special sensitivity and attention in their care and rehabilitation. 48. The obligation under article 39 of the Convention sets out the duty of States to provide rehabilitation services to children who have been victims of any form of abuse, neglect, exploitation, torture, cruel, inhuman and degrading treatment or armed conflicts. In order to facilitate such recovery and reintegration, culturally appropriate and gender sensitive mental health care should be developed and qualified psychosocial counselling provided.
53. Risks are also great for a child who has already been a victim of trafficking, resulting in the status of being unaccompanied or separated. Such children should not be penalized and should receive assistance as victims of a serious human rights violation. Some trafficked children may be eligible for refugee status under the 1951 Convention, and States should ensure that separated and unaccompanied trafficked children who wish to seek asylum or in relation to whom there is otherwise indication that international protection needs exist, have access to asylum procedures. Children who are at risk of being re-trafficked should not be returned to their country of origin unless it is in their best interests and appropriate measures for their protection have been taken. States should consider complementary forms of protection for trafficked children when return is not in their best interests. h) Prevention of military recruitment and protection against effects of war (arts. 38 and 39)
PREVENTION OF RECRUITMENT
49. States shall, in particular where government capacity is limited, accept and facilitate assistance offered by UNICEF, the World Health Organization (WHO), United Nations Joint Programme on HIV/AIDS (UNAIDS), UNHCR and other agencies (art. 22 (2)) within their respective mandates, as well as, where appropriate, other competent intergovernmental organizations or non-governmental organizations in order to meet the health and health-care needs of unaccompanied and separated children.
54. State obligations deriving from article 38 of the Convention and from articles 3 and 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict also apply to unaccompanied and separated children. A State must take all necessary measures to prevent recruitment or use of such children by any party to a conflict. This also applies to former child soldiers who have defected from their units and who require protection against re-recruitment.
g) Prevention of trafficking and of sexual and other forms of exploitation, abuse and violence (arts. 34, 35 and 36)
50. Unaccompanied or separated children in a country outside their country of origin are particularly vulnerable to exploitation and abuse. Girls are at particular risk of being trafficked, including for purposes of sexual exploitation. 51. Articles 34 to 36 of the Convention must be read in conjunction with special protection and assistance obligations to be provided according to article 20 of the Convention, in order to ensure that unaccompanied and separated children are shielded from trafficking, and from sexual and other forms of exploitation, abuse and violence.
70
52. Trafficking of such a child, or “re-trafficking” in cases where a child was already a victim of trafficking, is one of many dangers faced by unaccompanied or separated children. Trafficking in children is a threat to the fulfilment of their right to life, survival and development (art. 6). In accordance with article 35 of the Convention, States parties should take appropriate measures to prevent such trafficking. Necessary measures include identifying unaccompanied and separated children; regularly inquiring as to their whereabouts; and conducting information campaigns that are age-appropriate, gender-sensitive and in a language and medium that is understandable to the child. Adequate legislation should also be passed and effective mechanisms of enforcement be established with respect to labour regulations and border crossing.
CARE ARRANGEMENTS
55. Care arrangements for unaccompanied and separated children shall be made in a manner which prevents their recruitment, re-recruitment or use by any party to a conflict. Guardianships should not be given to individuals or organizations who are directly or indirectly involved in a conflict.
FORMER CHILD SOLDIERS
56. Child soldiers should be considered primarily as victims of armed conflict. Former child soldiers, who often find themselves unaccompanied or separated at the cessation of the conflict or following defection, shall be given all the necessary support services to enable reintegration into
BACK
KEYWORDS INDEX
U PV EDR A TED SION normal life, including necessary psychosocial counselling. Such children shall be identified and demobilized on a priority basis during any identification and separation operation. Child soldiers, in particular, those who are unaccompanied or separated, should not normally be interned, but rather, benefit from special protection and assistance measures, in particular as regards their demobilization and rehabilitation. Particular efforts must be made to provide support and facilitate the reintegration of girls who have been associated with the military, either as combatants or in any other capacity. 57. If, under certain circumstances, exceptional internment of a child soldier over the age of 15 years is unavoidable and in compliance with international human rights and humanitarian law, for example, where she or he poses a serious security threat, the conditions of such internment should be in conformity with international standards, including article 37 of the Convention and those pertaining to juvenile justice, and should not preclude any tracing efforts and priority participation in rehabilitation programmes.
NON-REFOULEMENT
58. As under-age recruitment and participation in hostilities entails a high risk of irreparable harm involving fundamental human rights, including the right to life, State obligations deriving from article 38 of the Convention, in conjunction with articles 3 and 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entail extraterritorial effects and States shall refrain from returning a child in any manner whatsoever to the borders of a State where there is a real risk of under-age recruitment or participation, directly or indirectly, in hostilities. CHILD-SPECIFIC FORMS AND MANIFESTATIONS OF PERSECUTION3 59. Reminding States of the need for age and gendersensitive asylum procedures and an age and gendersensitive interpretation of the refugee definition, the Committee highlights that under-age recruitment (including of girls for sexual services or forced marriage with the military) and direct or indirect participation in hostilities constitutes a serious human rights violation and thereby persecution, and should lead to the granting of refugee status where the well-founded fear of such recruitment or participation in hostilities is based on “reasons of race, religion, nationality, membership of a particular social group or political opinion” (article 1A (2), 1951 Refugee Convention).
REHABILITATION AND RECOVERY
60. States shall develop, where needed, in cooperation with international agencies and NGOs, a comprehensive ageappropriate and gender-sensitive system of psychological support and assistance for unaccompanied and separated children affected by armed conflict. 3 On child-specific forms and manifestations of persecution more generally, see section VI (d) below “Child sensitive assessment of protection needs, taking into account persecution of a child-specific nature”.
i) Prevention of deprivation of liberty and treatment in cases thereof 61. In application of article 37 of the Convention and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. Where detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37 (b) of the Convention that requires detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated children from detention and their placement in other forms of appropriate accommodation. 62. In addition to national requirements, international obligations constitute part of the law governing detention. With regard to asylum-seeking, unaccompanied and separated children, States must, in particular, respect their obligations deriving from article 31 (1) of the 1951 Refugee Convention. States should further take into account that illegal entry into or stay in a country by an unaccompanied or separated child may also be justified according to general principles of law, where such entry or stay is the only way of preventing a violation of the fundamental human rights of the child. More generally, in developing policies on unaccompanied or separated children, including those who are victims of trafficking and exploitation, States should ensure that such children are not criminalized solely for reasons of illegal entry or presence in the country. 63. In the exceptional case of detention, conditions of detention must be governed by the best interests of the child and pay full respect to article 37 (a) and (c) of the Convention and other international obligations. Special arrangements must be made for living quarters that are suitable for children and that separate them from adults, unless it is considered in the child’s best interests not to do so. Indeed, the underlying approach to such a programme
BI A CK N D E X
71
U PV EDR A TED SION should be “care” and not “detention”. Facilities should not be located in isolated areas where culturally appropriate community resources and access to legal aid are unavailable. Children should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel and their guardian. They should also be provided with the opportunity to receive all basic necessities as well as appropriate medical treatment and psychological counselling where necessary. During their period in detention, children have the right to education which ought, ideally, to take place outside the detention premises in order to facilitate the continuance of their education upon release. They also have the right to recreation and play as provided for in article 31 of the Convention. In order to effectively secure the rights provided by article 37 (d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.
ACCESS
TO THE ASYLUM PROCEDURE, LEGAL SAFEGUARDS AND RIGHTS IN ASYLUM a) General 64. The obligation stemming from article 22 of the Convention to take “appropriate measures” to ensure that a child, whether unaccompanied or accompanied, who is seeking refugee status receives appropriate protection entails, inter alia, the responsibility to set up a functioning asylum system and, in particular, to enact legislation addressing the particular treatment of unaccompanied and separated children and to build capacities necessary to realize this treatment in accordance with applicable rights codified in the Convention and in other international human rights, refugee protection or humanitarian instruments to which the State is a party. States facing resource constraints in staging such capacity-building efforts are strongly encouraged to seek international assistance, including that provided by UNHCR. 65. Taking into account the complementary nature of the obligations under article 22 and those deriving from international refugee law, as well as the desirability of consolidated standards, States should apply international standards relating to refugees as they progressively evolve when implementing article 22 of the Convention. b) Access to asylum procedures, regardless of age 66. Asylum-seeking children, including those who are unaccompanied or separated, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection, irrespective of their age. In the case that facts become known during the identification and registration process which indicate that the child may have a well-founded fear or, even if unable to explicitly articulate a concrete fear, the child may objectively be at risk of persecution for reasons of race, 72
religion, nationality, membership of a particular social group or political opinion, or otherwise be in need of international protection, such a child should be referred to the asylum procedure and/or, where relevant, to mechanisms providing complementary protection under international and domestic law. 67. Unaccompanied or separated children for whom there is no indication of being in need of international protection should not automatically, or otherwise, be referred to asylum procedures, but shall be protected pursuant to other relevant child protection mechanisms such as those provided under youth welfare legislation. c) Procedural safeguards and support measures (art. 3 (3)) 68. Appropriate measures required under article 22 (1) of the Convention must take into account the particular vulnerabilities of unaccompanied and separated children and the national legal framework and conditions. Such measures should be guided by the considerations set out below. 69. An asylum-seeking child should be represented by an adult who is familiar with the child’s background and who is competent and able to represent his or her best interests (see section V (b), “Appointment of a guardian or adviser or legal representative”). The unaccompanied or separated child should also, in all cases, be given access, free of charge, to a qualified legal representative, including where the application for refugee status is processed under the normal procedures for adults. 70. Refugee status applications filed by unaccompanied and separated children shall be given priority and every effort should be made to render a decision promptly and fairly. 71. Minimum procedural guarantees should include that the application will be determined by a competent authority fully qualified in asylum and refugee matters. Where the age and maturity of the child permits, the opportunity for a personal interview with a qualified official should be granted before any final decision is made. Wherever the child is unable to communicate directly with the qualified official in a common language, the assistance of a qualified interpreter should be sought. Moreover, the child should be given the “benefit of the doubt”, should there be credibility concerns relating to his or her story as well as a possibility to appeal for a formal review of the decision. 72. The interviews should be conducted by representatives of the refugee determination authority who will take into account the special situation of unaccompanied children in order to carry out the refugee status assessment and apply an understanding of the history, culture and background of the child. The assessment process should comprise a case-by-case examination of the unique combination of factors presented by each child, including the child’s personal, family and cultural background. The guardian and the legal representative should be present during all interviews.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 73. In cases of large-scale refugee movements where individual refugee status determination is not possible, States may grant refugee status to all members of a group. In such circumstances, all unaccompanied or separated children are entitled to be granted the same status as other members of the particular group.
protection needs of the unaccompanied and separated child. Therefore, children granted complementary forms of protection are entitled, to the fullest extent, to the enjoyment of all human rights granted to children in the territory or subject to the jurisdiction of the State, including those rights which require a lawful stay in the territory.
d) Child-sensitive assessment of protection needs, taking into account persecution of a child-specific nature
78. In line with the generally applicable principles and, in particular, those relating to the responsibilities of States with regard to unaccompanied or separated children finding themselves in their territory, children who are neither granted refugee status nor benefiting from complementary forms of protection, will still enjoy protection under all norms of the Convention as long as they remain de facto within the States’ territories and/or subject to its jurisdiction.
74. When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures. 75. Staff involved in status-determination procedures of children, in particular those who are unaccompanied or separated, should receive training on adopting an application of international and national refugee law that is child, cultural, and gender-sensitive. To properly assess asylum claims of children, information on the situation of children, including those belonging to minorities or marginalized groups, should be included in government efforts to collect country of-origin information. e) Full enjoyment of all international refugee and human rights by children granted refugee status (art. 22) 76. Unaccompanied or separated children recognized as refugees and granted asylum do not only enjoy rights under the 1951 Refugee Convention, but are also entitled to the fullest extent to the enjoyment of all human rights granted to children in the territory or subject to the jurisdiction of the State, including those rights which require a lawful stay in the territory.
FAMILY REUNIFICATION, RETURN AND OTHER FORMS OF DURABLE SOLUTIONS a) General 79. The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs, takes into account the child’s view and, wherever possible, leads to overcoming the situation of a child being unaccompanied or separated. Efforts to find durable solutions for unaccompanied or separated children should be initiated and implemented without undue delay and, wherever possible, immediately upon the assessment of a child being unaccompanied or separated. Following a rights-based approach, the search for a durable solution commences with analysing the possibility of family reunification. 80. Tracing is an essential component of any search for a durable solution and should be prioritized except where the act of tracing, or the way in which tracing is conducted, would be contrary to the best interests of the child or jeopardize fundamental rights of those being traced. In any case, in conducting tracing activities, no reference should be made to the status of the child as an asylumseeker or refugee. Subject to all of these conditions, such tracing efforts should also be continued during the asylum procedure. For all children who remain in the territory of the host State, whether on the basis of asylum, complementary forms of protection or due to other legal or factual obstacles to removal, a durable solution must be sought.
f) Children to benefit from complementary forms of protection
b) Family reunification
77. In the case that the requirements for granting refugee status under the 1951 Refugee Convention are not met, unaccompanied and separated children shall benefit from available forms of complementary protection to the extent determined by their protection needs. The application of such complementary forms of protection does not obviate States’ obligations to address the particular
81. In order to pay full respect to the obligation of States under article 9 of the Convention to ensure that a child shall not be separated from his or her parents against their will, all efforts should be made to return an unaccompanied or separated child to his or her parents except where further separation is necessary for the best interests of the child, taking full account of the right of the child to express his or her views (art. 12) (see also section IV (e), “Right of
BI A CK N D E X
73
U PV EDR A TED SION child, and in particular, if the principle of non-refoulement applies. Return to the country of origin shall in principle only be arranged if such return is in the best interests of the child. Such a determination shall, inter alia, take into account: - The safety, security and other conditions, including socio-economic conditions, awaiting the child upon return, including through home study, where appropriate, conducted by social network organizations; the child to express his or her views freely”). While the considerations explicitly listed in article 9, paragraph 1, sentence 2, namely, cases involving abuse or neglect of the child by the parents, may prohibit reunification at any location, other best-interests considerations can provide an obstacle to reunification at specific locations only.
- The availability of care arrangements for that particular child;
82. Family reunification in the country of origin is not in the best interests of the child and should therefore not be pursued where there is a “reasonable risk” that such a return would lead to the violation of fundamental human rights of the child. Such risk is indisputably documented in the granting of refugee status or in a decision of the competent authorities on the applicability of nonrefoulement obligations (including those deriving from article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the International Covenant on Civil and Political Rights). Accordingly, the granting of refugee status constitutes a legally binding obstacle to return to the country of origin and, consequently, to family reunification therein. Where the circumstances in the country of origin contain lower level risks and there is concern, for example, of the child being affected by the indiscriminate effects of generalized violence, such risks must be given full attention and balanced against other rights-based considerations, including the consequences of further separation. In this context, it must be recalled that the survival of the child is of paramount importance and a precondition for the enjoyment of any other rights.
- The child’s level of integration in the host country and the duration of absence from the home country;
83. Whenever family reunification in the country of origin is not possible, irrespective of whether this is due to legal obstacles to return or whether the best-interests-based balancing test has decided against return, the obligations under article 9 and 10 of the Convention come into effect and should govern the host country’s decisions on family reunification therein. In this context, States parties are particularly reminded that “applications by a child or his or her parents to enter or leave a State party for the purpose of family reunification shall be dealt with by States parties in a positive, humane and expeditious manner” and “shall entail no adverse consequences for the applicants and for the members of their family” (art. 10 (1)). Countries of origin must respect “the right of the child and his or her parents to leave any country, including their own, and to enter their own country” (art. 10 (2)). c) Return to the country of origin 84. Return to the country of origin is not an option if it would lead to a “reasonable risk” that such return would result in the violation of fundamental human rights of the 74
- The views of the child expressed in exercise of his or her right to do so under article 12 and those of the caretakers;
- The child’s right “to preserve his or her identity, including nationality, name and family relations” (art. 8); - The “desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” (art. 20). 85. In the absence of the availability of care provided by parents or members of the extended family, return to the country of origin should, in principle, not take place without advance secure and concrete arrangements of care and custodial responsibilities upon return to the country of origin. 86. Exceptionally, a return to the home country may be arranged, after careful balancing of the child’s best interests and other considerations, if the latter are rightsbased and override best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the State or to the society. Non-rights-based arguments such as those relating to general migration control, cannot override best interests considerations. 87. In all cases return measures must be conducted in a safe, child-appropriate and gender sensitive manner. 88. Countries of origin are also reminded in this context of their obligations pursuant to article 10 of the Convention and, in particular, to respect “the right of the child and his or her parents to leave any country, including their own, and to enter their own country”. d) Local integration 89. Local integration is the primary option if return to the country of origin is impossible on either legal or factual grounds. Local integration must be based on a secure legal status (including residence status) and be governed by the Convention rights that are fully applicable to all children who remain in the country, irrespective of whether this is due to their recognition as a refugee, other legal obstacles to return, or whether the best-interests-based balancing test has decided against return.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 90. Once it has been determined that a separated or unaccompanied child will remain in the community, the relevant authorities should conduct an assessment of the child’s situation and then, in consultation with the child and his or her guardian, determine the appropriate long-term arrangements within the local community and other necessary measures to facilitate such integration. The long-term placement should be decided in the best interests of the child and, at this stage, institutional care should, wherever possible, serve only as a last resort. The separated or unaccompanied child should have the same access to rights (including to education, training, employment and health care) as enjoyed by national children. In ensuring that these rights are fully enjoyed by the unaccompanied or separated child, the host country may need to pay special attention to the extra measures required to address the child’s vulnerable status, including, for example, through extra language training.
- Where there is reasonable hope of successful tracing and family reunification is in the child’s best interests;
e) Intercountry adoption (art. 21)
92. Resettlement to a third country may offer a durable solution for an accompanied or separated child who cannot return to the country of origin and for whom no durable solution can be envisaged in the host country. The decision to resettle an unaccompanied or separated child must be based on an updated, comprehensive and thorough best-interests assessment, taking into account, in particular, ongoing international and other protection needs. Resettlement is particularly called for if such is the only means to effectively and sustainably protect a child against refoulement or against persecution or other serious human rights violations in the country of stay. Resettlement is also in the best interests of the unaccompanied or separated child if it serves family reunification in the resettlement country.
91. States must have full respect for the preconditions provided under article 21 of the Convention as well as other relevant international instruments, including in particular the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption and its 1994 Recommendation Concerning the Application to Refugee and other Internationally Displaced Children when considering the adoption of unaccompanied and separated children. States should, in particular, observe the following: - Adoption of unaccompanied or separated children should only be considered once it has been established that the child is in a position to be adopted. In practice, this means, inter alia, that efforts with regard to tracing and family reunification have failed, or that the parents have consented to the adoption. The consent of parents and the consent of other persons, institutions and authorities that are necessary for adoption must be free and informed. This supposes notably that such consent has not been induced by payment or compensation of any kind and has not been withdrawn; - Unaccompanied or separated children must not be adopted in haste at the height of an emergency; - Any adoption must be determined as being in the child’s best interests and carried out in keeping with applicable national, international and customary law; - The views of the child, depending upon his/her age and degree of maturity, should be sought and taken into account in all adoption procedures. This requirement implies that he/she has been counselled and duly informed of the consequences of adoption and of his/her consent to adoption, where such consent is required. Such consent must have been given freely and not induced by payment or compensation of any kind;
- If it is contrary to the expressed wishes of the child or the parents; - Unless a reasonable time has passed during which all feasible steps to trace the parents or other surviving family members has been carried out. This period of time may vary with circumstances, in particular, those relating to the ability to conduct proper tracing; however, the process of tracing must be completed within a reasonable period of time; - Adoption in a country of asylum should not be taken up when there is the possibility of voluntary repatriation under conditions of safety and dignity in the near future. f) Resettlement in a third country
93. The best-interests assessment determination, prior to a decision to resettle, needs also to take into account other factors such as: the envisaged duration of legal or other obstacles to a child’s return to his or her home country; the child’s right to preserve his or her identity, including nationality and name (art. 8); the child’s age, sex, emotional state, educational and family background; continuity/discontinuity of care in the host country; the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background (art. 20); the right of the child to preserve his or her family relations (art. 8) and related short, medium and long-term possibilities of family reunion either in the home, host, or resettlement country. Unaccompanied or separated children should never be resettled to a third country if this would undermine or seriously hamper future reunion with their family. 94. States are encouraged to provide resettlement opportunities in order to meet all the resettlement needs related to unaccompanied and separated children.
- Priority must be given to adoption by relatives in their country of residence. Where this is not an option, preference will be given to adoption within the community from which the child came or at least within his or her own culture; - Adoption should not be considered:
BI A CK N D E X
75
U PV EDR A TED SION 100. Data collected within such a system should ideally include but not be limited to: basic biographical data on each child (including age, sex, country of origin and nationality, ethnic group); total number of unaccompanied and separated children attempting to enter the country and the number that have been refused entry; number of requests for asylum; number of legal representatives and guardians assigned to such children; legal and immigration status (i.e. asylum-seeker, refugee, temporary resident permit); living arrangements (i.e. in institutions, with families or living independently); enrolment in school or vocational training; family reunifications; and, numbers returned to their country of origin. In addition, States parties should consider collecting qualitative data that would allow them to analyse issues that remain insufficiently addressed, such as for instance, disappearances of unaccompanied and separated children and the impact of trafficking.
TRAINING,
DATA AND STATISTICS
a) Training of personnel dealing with unaccompanied and separated children 95. Particular attention should be paid to the training of officials working with separated and unaccompanied children and dealing with their cases. Specialized training is equally important for legal representatives, guardians, interpreters and others dealing with separated and unaccompanied children. 96. Such training should be specifically tailored to the needs and rights of the groups concerned. Nevertheless, certain key elements should be included in all training programmes, including: - Principles and provisions of the Convention; - Knowledge of the country of origin of separated and unaccompanied children; - Appropriate interview techniques; - Child development and psychology; - Cultural sensitivity and intercultural communication. 97. Initial training programmes should also be followed up regularly, including through on the-job learning and professional networks.. b) Data and statistics unaccompanied children
on
separated
and
98. It is the experience of the Committee that data and statistics collected with regard to unaccompanied and separated children tends to be limited to the number of arrivals and/or number of requests for asylum. This data is insufficient for a detailed analysis of the implementation of the rights of such children. Furthermore, data and statistics are often collected by a variety of different ministries or agencies, which can impede further analysis and presents potential concerns with regard to confidentiality and a child’s right to privacy. 99. Accordingly, the development of a detailed and integrated system of data collection on unaccompanied and separated children is a prerequisite for the development of effective policies for the implementation of the rights of such children. 76
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
77
number 7
U PV EDR A TED SION the influences shaping their development; e) To point to variations in cultural expectations and treatment of children, including local customs and practices that should be respected, except where they contravene the rights of the child; f) To emphasize the vulnerability of young children to poverty, discrimination, family breakdown and multiple other adversities that violate their rights and undermine their well being; g) To contribute to the realization of rights for all young children through formulation and promotion of comprehensive policies, laws, programmes, practices, professional training and research specifically focused on rights in early childhood.
IN T R O DUC T I ON 1. This general comment arises out of the Committee’s experiences of reviewing States parties’ reports. In many cases, very little information has been offered about early childhood, with comments limited mainly to child mortality, birth registration and health care. The Committee felt the need for a discussion on the broader implications of the Convention on the Rights of the Child for young children. Accordingly, in 2004, the Committee devoted its day of general discussion to the theme “Implementing child rights in early childhood”. This resulted in a set of recommendations (see CRC/C/143, sect. VII) as well as the decision to prepare a general comment on this important topic. Through this general comment, the Committee wishes to encourage recognition that young children are holders of all rights enshrined in the Convention and that early childhood is a critical period for the realization of these rights. The Committee’s working definition of “early childhood” is all young children: at birth and throughout infancy; during the preschool years; as well as during the transition to school (see paragraph 4 below).
O B JEC T I VES
OF THE GENERAL COMMENT 2. The objectives of the general comment are: a) To strengthen understanding of the human rights of all young children and to draw States parties’ attention to their obligations towards young children; b) To comment on the specific features of early childhood that impact on the realization of rights; c) To encourage recognition of young children as social actors from the beginning of life, with particular interests, capacities and vulnerabilities, and of requirements for protection, guidance and support in the exercise of their rights; d) To draw attention to diversities within early childhood that need to be taken into account when implementing the Convention, including diversities in young children’s circumstances, in the quality of their experiences and in 80
HUMAN RIGHTS AND YOUNG CHILDREN
3. Young children are rights holders. The Convention on the Rights of the Child defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” (art. 1). Consequently, young children are holders of all the rights enshrined in the Convention. They are entitled to special protection measures and, in accordance with their evolving capacities, the progressive exercise of their rights. The Committee is concerned that in implementing their obligations under the Convention, States parties have not given sufficient attention to young children as rights holders and to the laws, policies and programmes required to realize their rights during this distinct phase of their childhood. The Committee reaffirms that the Convention on the Rights of the Child is to be applied holistically in early childhood, taking account of the principle of the universality, indivisibility and interdependence of all human rights. 4. Definition of early childhood. Definitions of early childhood vary in different countries and regions, according to local traditions and the organization of primary school systems. In some countries, the transition from preschool to school occurs soon after 4 years old. In other countries, this transition takes place at around 7 years old. In its consideration of rights in early childhood, the Committee wishes to include all young children: at birth and throughout infancy; during the preschool years; as well as during the transition to school. Accordingly, the Committee proposes as an appropriate working definition of early childhood the period below the age of 8 years; States parties should review their obligations towards young children in the context of this definition. 5. A positive agenda for early childhood. The Committee encourages States parties to construct a positive agenda for rights in early childhood. A shift away from traditional beliefs that regard early childhood mainly as a period for the socialization of the immature human being towards mature adult status is required. The Convention requires that children, including the very youngest children, be respected as persons in their own right. Young children
BACK
KEYWORDS INDEX
U PV EDR A TED SION
should be recognized as active members of families, communities and societies, with their own concerns, interests and points of view. For the exercise of their rights, young children have particular requirements for physical nurturance, emotional care and sensitive guidance, as well as for time and space for social play, exploration and learning. These requirements can best be planned for within a framework of laws, policies and programmes for early childhood, including a plan for implementation and independent monitoring, for example through the appointment of a children’s rights commissioner, and through assessments of the impact of laws and policies on children (see general comment No. 2 (2002) on the role of independent human rights institutions, para. 19). 6. Features of early childhood. Early childhood is a critical period for realizing children’s rights. During this period: a) Young children experience the most rapid period of growth and change during the human lifespan, in terms of their maturing bodies and nervous systems, increasing mobility, communication skills and intellectual capacities, and rapid shifts in their interests and abilities; b) Young children form strong emotional attachments to their parents or other caregivers, from whom they seek and require nurturance, care, guidance and protection, in ways that are respectful of their individuality and growing capacities; c) Young children establish their own important relationships with children of the same age, as well as with younger and older children. Through these relationships they learn to negotiate and coordinate shared activities, resolve conflicts, keep agreements and accept responsibility for others; d) Young children actively make sense of the physical, social and cultural dimensions of the world they inhabit, learning progressively from their activities and their interactions with others, children as well as adults; e) Young children’s earliest years are the foundation for their physical and mental health, emotional security, cultural and personal identity, and developing competencies; f) Young children’s experiences of growth and development vary according to their individual nature, as well as their gender, living conditions, family organization, care arrangements and education systems; g) Young children’s experiences of growth and development are powerfully shaped by cultural beliefs about their needs and proper treatment, and about their active role in family and community. 7. Respecting the distinctive interests, experiences and challenges facing every young child is the starting point for realizing their rights during this crucial phase of their lives.
8. Research into early childhood. The Committee notes the growing body of theory and research which confirms that young children are best understood as social actors whose survival, well being and development are dependent on and built around close relationships. These relationships are normally with a small number of key people, most often parents, members of the extended family and peers, as well as caregivers and other early childhood professionals. At the same time, research into the social and cultural dimensions of early childhood draws attention to the diverse ways in which early development is understood and enacted, including varying expectations of the young child and arrangements for his or her care and education. A feature of modern societies is that increasing numbers of young children are growing up in multicultural communities and in contexts marked by rapid social change, where beliefs and expectations about young children are also changing, including through greater recognition of their rights. States parties are encouraged to draw on beliefs and knowledge about early childhood in ways that are appropriate to local circumstances and changing practices, and respect traditional values, provided these are not discriminatory, (article 2 of the Convention) nor prejudicial to children’s health and well being (art. 24.3), nor against their best interests (art. 3). Finally, research has highlighted the particular risks to young children from malnutrition, disease, poverty, neglect, social exclusion and a range of other adversities. It shows that proper prevention and intervention strategies during early childhood have the potential to impact positively on young children’s current well being and future prospects. Implementing child rights in early childhood is thus an effective way to help prevent personal, social and educational difficulties during middle childhood and adolescence (see general comment No. 4 (2003) on adolescent health and development).
GENERAL PRINCIPLES AND RIGHTS IN EARLY CHILDHOOD
9. The Committee has identified articles 2, 3, 6 and 12 of the Convention as general principles (see general comment No. 5 (2003) on the general measures of implementation of the Convention). Each principle has implications for rights in early childhood. 10. Right to life, survival and development. Article 6 refers to the child’s inherent right to life and States parties’ obligation to ensure, to the maximum extent possible, the survival and development of the child. States parties are urged to take all possible measures to improve perinatal care for mothers and babies, reduce infant and child mortality, and create conditions that promote the well being of all young children during this critical phase of their lives. Malnutrition and preventable diseases continue to be major obstacles to realizing rights in early childhood. Ensuring survival and physical health are priorities, but States parties are reminded that article 6 encompasses all aspects of development, and that a young child’s health and psychosocial well being are in many respects interdependent. Both may be put at risk by adverse living conditions, neglect, insensitive or abusive
BI A CK N D E X
81
U PV EDR A TED SION treatment and restricted opportunities for realizing human potential. Young children growing up in especially difficult circumstances require particular attention (see section VI below). The Committee reminds States parties (and others concerned) that the right to survival and development can only be implemented in a holistic manner, through the enforcement of all the other provisions of the Convention, including rights to health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment, education and play (arts. 24, 27, 28, 29 and 31), as well as through respect for the responsibilities of parents and the provision of assistance and quality services (arts. 5 and 18). From an early age, children should themselves be included in activities promoting good nutrition and a healthy and disease preventing lifestyle. 11. Right to non discrimination. Article 2 ensures rights to every child, without discrimination of any kind. The Committee urges States parties to identify the implications of this principle for realizing rights in early childhood: a) Article 2 means that young children in general must not be discriminated against on any grounds, for example where laws fail to offer equal protection against violence for all children, including young children. Young children are especially at risk of discrimination because they are relatively powerless and depend on others for the realization of their rights; b) Article 2 also means that particular groups of young children must not be discriminated against. Discrimination may take the form of reduced levels of nutrition; inadequate care and attention; restricted opportunities for play, learning and education; or inhibition of free expression of feelings and views. Discrimination may also be expressed through harsh treatment and unreasonable expectations, which may be exploitative or abusive. For example: i) Discrimination against girl children is a serious violation of rights, affecting their survival and all areas of their young lives as well as restricting their capacity to contribute positively to society. They may be victims of selective abortion, genital mutilation, neglect and infanticide, including through inadequate feeding in infancy. They may be expected to undertake excessive family responsibilities and deprived of opportunities to participate in early childhood and primary education; ii) Discrimination against children with disabilities reduces survival prospects and quality of life. These children are entitled to the care, nutrition, nurturance and encouragement offered other children. They may also require additional, special assistance in order to ensure their integration and the realization of their rights; iii) Discrimination against children infected with or affected by HIV/AIDS deprives them of the help and support they most require. Discrimination may be found within public policies, in the provision of and access to services, as well as in everyday practices that violate these children’s rights (see also paragraph 27); iv) Discrimination related to ethnic origin, class/ caste, personal circumstances and lifestyle, or political and religious beliefs (of children or their parents) excludes children from full participation in society. It affects parents’ capacities to fulfil their responsibilities towards 82
their children. It affects children’s opportunities and self esteem, as well as encouraging resentment and conflict among children and adults; v) Young children who suffer multiple discrimination (e.g. related to ethnic origin, social and cultural status, gender and/or disabilities) are especially at risk. 12. Young children may also suffer the consequences of discrimination against their parents, for example if children have been born out of wedlock or in other circumstances that deviate from traditional values, or if their parents are refugees or asylum seekers. States parties have a responsibility to monitor and combat discrimination in whatever forms it takes and wherever it occurs within families, communities, schools or other institutions. Potential discrimination in access to quality services for young children is a particular concern, especially where health, education, welfare and other services are not universally available and are provided through a combination of State, private and charitable organizations. As a first step, the Committee encourages States parties to monitor the availability of and access to quality services that contribute to young children’s survival and development, including through systematic data collection, disaggregated in terms of major variables related to children’s and families’ background and circumstances. As a second step, actions may be required that guarantee that all children have an equal opportunity to benefit from available services. More generally, States parties should raise awareness about discrimination against young children in general, and against vulnerable groups in particular. 13. Best interests of the child. Article 3 sets out the principle that the best interests of the child are a primary consideration in all actions concerning children. By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well being, as well as measures to support and assist parents and others who have day to day responsibility for realizing children’s rights: a) Best interests of individual children. All decision making concerning a child’s care, health, education, etc. must take account of the best interests principle, including decisions by parents, professionals and others responsible for children. States parties are urged to make provisions for young children to be represented independently in all legal proceedings by someone who acts for the child’s interests, and for children to be heard in all cases where they are capable of expressing their opinions or preferences; b) Best interests of young children as a group or constituency. All law and policy development, administrative and judicial decision making and service provision that affect children must take account of the best interests
BACK
KEYWORDS INDEX
U PV EDR A TED SION principle. This includes actions directly affecting children (e.g. related to health services, care systems, or schools), as well as actions that indirectly impact on young children (e.g. related to the environment, housing or transport).
PARENTAL
14. Respect for the views and feelings of the young child. Article 12 states that the child has a right to express his or her views freely in all matters affecting the child, and to have them taken into account. This right reinforces the status of the young child as an active participant in the promotion, protection and monitoring of their rights.Respect for the young child’s agency as a participant in family, community and society is frequently overlooked, or rejected as inappropriate on the grounds of age and immaturity. In many countries and regions, traditional beliefs have emphasized young children’s need for training and socialization. They have been regarded as undeveloped, lacking even basic capacities for understanding, communicating and making choices. They have been powerless within their families, and often voiceless and invisible within society. The Committee wishes to emphasize that article 12 applies both to younger and to older children. As holders of rights, even the youngest children are entitled to express their views, which should be “given due weight in accordance with the age and maturity of the child” (art. 12.1). Young children are acutely sensitive to their surroundings and very rapidly acquire understanding of the people, places and routines in their lives, along with awareness of their own unique identity. They make choices and communicate their feelings, ideas and wishes in numerous ways, long before they are able to communicate through the conventions of spoken or written language. In this regard:
15. A crucial role for parents and other primary caregivers. Under normal circumstances, a young child’s parents play a crucial role in the achievement of their rights, along with other members of family, extended family or community, including legal guardians, as appropriate. This is fully recognized within the Convention (especially article 5), along with the obligation on States parties to provide assistance, including quality childcare services (especially article 18). The preamble to the Convention refers to the family as “the fundamental group of society and the natural environment for the growth and well being of all its members and particularly children”. The Committee recognizes that “family” here refers to a variety of arrangements that can provide for young children’s care, nurturance and development, including the nuclear family, the extended family, and other traditional and modern community based arrangements, provided these are consistent with children’s rights and best interests.
a) The Committee encourages States parties to take all appropriate measures to ensure that the concept of the child as rights holder with freedom to express views and the right to be consulted in matters that affect him or her is implemented from the earliest stage in ways appropriate to the child’s capacities, best interests, and rights to protection from harmful experiences; b) The right to express views and feelings should be anchored in the child’s daily life at home (including, when applicable, the extended family) and in his or her community; within the full range of early childhood health, care and education facilities, as well as in legal proceedings; and in the development of policies and services, including through research and consultations; c) States parties should take all appropriate measures to promote the active involvement of parents, professionals and responsible authorities in the creation of opportunities for young children to progressively exercise their rights within their everyday activities in all relevant settings, including by providing training in the necessary skills. To achieve the right of participation requires adults to adopt a child centred attitude, listening to young children and respecting their dignity and their individual points of view. It also requires adults to show patience and creativity by adapting their expectations to a young child’s interests, levels of understanding and preferred ways of communicating.
RESPONSIBILITIES AND ASSISTANCE FROM STATES PARTIES
16. Parents/primary caregivers and children’s best interests. The responsibility vested in parents and other primary caregivers is linked to the requirement that they act in children’s best interests. Article 5 states that parents’ role is to offer appropriate direction and guidance in “the exercise by the child of the rights in the … Convention”. This applies equally to younger as to older children. Babies and infants are entirely dependent on others, but they are not passive recipients of care, direction and guidance. They are active social agents, who seek protection, nurturance and understanding from parents or other caregivers, which they require for their survival, growth and well being. Newborn babies are able to recognize their parents (or other caregivers) very soon after birth, and they engage actively in non verbal communication. Under normal circumstances, young children form strong mutual attachments with their parents or primary caregivers. These relationships offer children physical and emotional security, as well as consistent care and attention. Through these relationships children construct a personal identity and acquire culturally valued skills, knowledge and behaviours. In these ways, parents (and other caregivers) are normally the major conduit through which young children are able to realize their rights. 17. Evolving capacities as an enabling principle. Article 5 draws on the concept of “evolving capacities” to refer to processes of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, including acquiring understanding about their rights and about how they can best be realized. Respecting young children’s evolving capacities is crucial for the realization of their rights, and especially significant during early childhood, because of the rapid transformations in children’s physical, cognitive, social and emotional functioning, from earliest infancy to the beginnings of schooling. Article 5 contains the principle that parents (and others) have the responsibility to continually adjust the levels of support and guidance they offer to a child. These adjustments take account of a child’s interests and wishes
BI A CK N D E X
83
U PV EDR A TED SION
as well as the child’s capacities for autonomous decision making and comprehension of his or her best interests. While a young child generally requires more guidance than an older child, it is important to take account of individual variations in the capacities of children of the same age and of their ways of reacting to situations. Evolving capacities should be seen as a positive and enabling process, not an excuse for authoritarian practices that restrict children’s autonomy and self expression and which have traditionally been justified by pointing to children’s relative immaturity and their need for socialization. Parents (and others) should be encouraged to offer “direction and guidance” in a child centred way, through dialogue and example, in ways that enhance young children’s capacities to exercise their rights, including their right to participation (art. 12) and their right to freedom of thought, conscience and religion (art. 14).1 18. Respecting parental roles. Article 18 of the Convention reaffirms that parents or legal guardians have the primary responsibility for promoting children’s development and well being, with the child’s best interests as their basic concern (arts. 18.1 and 27.2). States parties should respect the primacy of parents, mothers and fathers. This includes the obligation not to separate children from their parents, unless it is in the child’s best interests (art. 9). Young children are especially vulnerable to adverse consequences of separations because of their physical dependence on and emotional attachment to their parents/primary caregivers. They are also less able to comprehend the circumstances of any separation. Situations which are most likely to impact negatively on young children include neglect and deprivation of adequate parenting; parenting under acute material or psychological stress or impaired mental health; parenting in isolation; parenting which is inconsistent, involves conflict between parents or is abusive towards children; and situations where children experience disrupted relationships (including enforced separations), or where they are provided with low quality institutional care. The Committee urges States parties to take all necessary steps to ensure that parents are able to take primary responsibility for their children; to support parents in fulfilling their responsibilities, including by reducing harmful deprivations, disruptions and distortions in children’s care; and to take action where young children’s well being may be at risk. States parties’ overall goals should include reducing the number of young children abandoned or orphaned, as well as minimizing the numbers requiring institutional or other forms of long term care, except where this is judged to be in a young child’s best interests (see also section VI below). 1 See G. Lansdown, The Evolving Capacities of the Child (Florence: UNICEF Innocenti Research Centre, 2005). 84
19. Social trends and the role of the family. The Convention emphasizes that “both parents have common responsibilities for the upbringing and development of the child”, with fathers and mothers recognized as equal caregivers (art. 18.1). The Committee notes that in practice family patterns are variable and changing in many regions, as is the availability of informal networks of support for parents, with an overall trend towards greater diversity in family size, parental roles and arrangements for bringing up children. These trends are especially significant for young children, whose physical, personal and psychological development is best provided for within a small number of consistent, caring relationships. Typically, these relationships are with some combination of mother, father, siblings, grandparents and other members of the extended family, along with professional caregivers specialized in childcare and education. The Committee acknowledges that each of these relationships can make a distinctive contribution to the fulfilment of children’s rights under the Convention and that a range of family patterns may be consistent with promoting children’s well being. In some countries and regions, shifting social attitudes towards family, marriage and parenting are impacting on young children’s experiences of early childhood, for example following family separations and reformations. Economic pressures also impact on young children, for example, where parents are forced to work far away from their families and their communities. In other countries and regions, the illness and death of one or both parents or other kin due to HIV/AIDS is now a common feature of early childhood. These and many other factors impact on parents’ capacities to fulfil their responsibilities towards children. More generally, during periods of rapid social change, traditional practices may no longer be viable or relevant to present parental circumstances and lifestyles, but without sufficient time having elapsed for new practices to be assimilated and new parental competencies understood and valued. 20. Assistance to parents. States parties are required to render appropriate assistance to parents, legal guardians and extended families in the performance of their child rearing responsibilities (arts. 18.2 and 18.3), including assisting parents in providing living conditions necessary for the child’s development (art. 27.2) and ensuring that children receive necessary protection and care (art. 3.2). The Committee is concerned that insufficient account is taken of the resources, skills and personal commitment required of parents and others responsible for young children, especially in societies where early marriage and parenthood is still sanctioned as well as in societies with a high incidence of young, single parents. Early childhood is the period of most extensive (and intensive) parental responsibilities related to all aspects of children’s well being covered by the Convention: their survival, health, physical safety and emotional security, standards of living and care, opportunities for play and learning, and freedom of expression. Accordingly, realizing children’s rights is in large measure dependent on the well being and resources available to those with responsibility for their care. Recognizing these interdependencies is a sound starting point for planning assistance and services to parents, legal guardians and other caregivers. For example:
BACK
KEYWORDS INDEX
U PV EDR A TED SION
COMPREHENSIVE
POLICIES AND PROGRAMMES FOR EARLY CHILDHOOD, ESPECIALLY FOR VULNERABLE CHILDREN
a) An integrated approach would include interventions that impact indirectly on parents’ ability to promote the best interests of children (e.g. taxation and benefits, adequate housing, working hours) as well as those that have more immediate consequences (e.g. perinatal health services for mother and baby, parent education, home visitors); b) Providing adequate assistance should take account of the new roles and skills required of parents, as well as the ways that demands and pressures shift during early childhood for example, as children become more mobile, more verbally communicative, more socially competent, and as they begin to participate in programmes of care and education; c) Assistance to parents will include provision of parenting education, parent counselling and other quality services for mothers, fathers, siblings, grandparents and others who from time to time may be responsible for promoting the child’s best interests; d) Assistance also includes offering support to parents and other family members in ways that encourage positive and sensitive relationships with young children and enhance understanding of children’s rights and best interests. 21. Appropriate assistance to parents can best be achieved as part of comprehensive policies for early childhood (see section V below), including provision for health, care and education during the early years. States parties should ensure that parents are given appropriate support to enable them to involve young children fully in such programmes, especially the most disadvantaged and vulnerable groups. In particular, article 18.3 acknowledges that many parents are economically active, often in poorly paid occupations which they combine with their parental responsibilities. Article 18.3 requires States parties to take all appropriate measures to ensure that children of working parents have the right to benefit from childcare services, maternity protection and facilities for which they are eligible. In this regard, the Committee recommends that States parties ratify the Maternity Protection Convention, 2000 (No. 183) of the International Labour Organization.
22. Rights based, multisectoral strategies. In many countries and regions, early childhood has received low priority in the development of quality services. These services have often been fragmented. They have frequently been the responsibility of several government departments at central and local levels, and their planning has often been piecemeal and uncoordinated. In some cases, they have also been largely provided by the private and voluntary sector, without adequate resources, regulation or quality assurance. States parties are urged to develop rights based, coordinated, multisectoral strategies in order to ensure that children’s best interests are always the starting point for service planning and provision. These should be based around a systematic and integrated approach to law and policy development in relation to all children up to 8 years old. A comprehensive framework for early childhood services, provisions and facilities is required, backed up by information and monitoring systems. Comprehensive services will be coordinated with the assistance provided to parents and will fully respect their responsibilities, as well as their circumstances and requirements (as in articles 5 and 18 of the Convention; see section IV above). Parents should also be consulted and involved in the planning of comprehensive services. 23. Programme standards and professional training appropriate to the age range. The Committee emphasizes that a comprehensive strategy for early childhood must also take account of individual children’s maturity and individuality, in particular recognizing the changing developmental priorities for specific age groups (for example, babies, toddlers, preschool and early primary school groups), and the implications for programme standards and quality criteria. States parties must ensure that the institutions, services and facilities responsible for early childhood conform to quality standards, particularly in the areas of health and safety, and that staff possess the appropriate psychosocial qualities and are suitable, sufficiently numerous and well trained. Provision of services appropriate to the circumstances, age and individuality of young children requires that all staff be trained to work with this age group. Work with young children should be socially valued and properly paid, in order to attract a highly qualified workforce, men as well as women. It is essential that they have sound, up to date theoretical and practical understanding about children’s rights and development (see also paragraph 41); that they adopt appropriate child centred care practices, curricula and pedagogies; and that they have access to specialist professional resources and support, including a supervisory and monitoring system for public and private programmes, institutions and services. 24. Access to services, especially for the most vulnerable. The Committee calls on States parties to ensure that all young children (and those with primary
BI A CK N D E X
85
U PV EDR A TED SION responsibility for their well being) are guaranteed access to appropriate and effective services, including programmes of health, care and education specifically designed to promote their well being. Particular attention should be paid to the most vulnerable groups of young children and to those who are at risk of discrimination (art. 2). This includes girls, children living in poverty, children with disabilities, children belonging to indigenous or minority groups, children from migrant families, children who are orphaned or lack parental care for other reasons, children living in institutions, children living with mothers in prison, refugee and asylum seeking children, children infected with or affected by HIV/AIDS, and children of alcohol or drug addicted parents (see also section VI). 25. Birth registration. Comprehensive services for early childhood begin at birth. The Committee notes that provision for registration of all children at birth is still a major challenge for many countries and regions. This can impact negatively on a child’s sense of personal identity and children may be denied entitlements to basic health, education and social welfare. As a first step in ensuring the rights to survival, development and access to quality services for all children (art. 6), the Committee recommends that States parties take all necessary measures to ensure that all children are registered at birth. This can be achieved through a universal, well managed registration system that is accessible to all and free of charge. An effective system must be flexible and responsive to the circumstances of families, for example by providing mobile registration units where appropriate. The Committee notes that children who are sick or disabled are less likely to be registered in some regions and emphasizes that all children should be registered at birth, without discrimination of any kind (art. 2). The Committee also reminds States parties of the importance of facilitating late registration of birth, and ensuring that children who have not been registered have equal access to health care, protection, education and other social services. 26. Standard of living and social security. Young children are entitled to a standard of living adequate for their physical, mental, spiritual, moral and social development (art. 27). The Committee notes with concern that even the most basic standard of living is not assured for millions of young children, despite widespread recognition of the adverse consequences of deprivation. Growing up in relative poverty undermines children’s well being, social inclusion and self esteem and reduces opportunities for learning and development. Growing up in conditions of absolute poverty has even more serious consequences, threatening children’s survival and their health, as well as undermining the basic quality of life. States parties are urged to implement systematic strategies to reduce poverty in early childhood as well as combat its negative effects on children’s well being. All possible means should be employed, including “material assistance and support programmes” for children and families (art. 27.3), in order to assure to young children a basic standard of living consistent with rights. Implementing children’s right to benefit from social security, including social insurance, is an important element of any strategy (art. 26).
86
27. Health-care provision. States parties should ensure that all children have access to the highest attainable standard of health care and nutrition during their early years, in order to reduce infant mortality and enable children to enjoy a healthy start in life (art. 24). In particular: a) States parties have a responsibility to ensure access to clean drinking water, adequate sanitation, appropriate immunization, good nutrition and medical services, which are essential for young children’s health, as is a stress free environment. Malnutrition and disease have long term impacts on children’s physical health and development. They affect children’s mental state, inhibiting learning and social participation and reducing prospects for realizing their potential. The same applies to obesity and unhealthy lifestyles; b) States parties have a responsibility to implement children’s right to health by encouraging education in child health and development, including about the advantages of breastfeeding, nutrition, hygiene and sanitation2. Priority should also be given to the provision of appropriate prenatal and post natal health care for mothers and infants in order to foster healthy family child relationships, especially between a child and his or her mother (or other primary caregiver) (art. 24.2). Young children are themselves able to contribute to ensuring their personal health and encouraging healthy lifestyles among their peers, for example through participation in appropriate, child centred health education programmes; c) The Committee wishes to draw States parties’ attention to the particular challenges of HIV/AIDS for early childhood. All necessary steps should be taken to: (i) prevent infection of parents and young children, especially by intervening in chains of transmission, especially between father and mother and from mother to baby; (ii) provide accurate diagnoses, effective treatment and other forms of support for both parents and young children who are infected by the virus (including antiretroviral therapies); and (iii) ensure adequate alternative care for children who have lost parents or other primary caregivers due to HIV/ AIDS, including healthy and infected orphans. (See also general comment No. 3 (2003) on HIV/AIDS and the rights of the child.) 28. Early childhood education. The Convention recognizes the right of the child to education, and primary education should be made compulsory and available free to all (art. 28). The Committee recognizes with appreciation that some States parties are planning to make one year of preschool education available and free of cost for all children. The Committee interprets the right to education during early childhood as beginning at birth and closely linked to young children’s right to maximum development (art. 6.2). Linking education to development is elaborated in article 29.1: “States parties agree that the education of the child shall be directed to: (a) the development of the child’s personality, talents and mental and physical abilities to their fullest potential”. General comment No. 1 on the aims of education explains that the goal is to “empower the child by developing his or her skills, learning and other 2 See Global Strategy for Infant and Young Child Feeding, World Health Organization, 2003.
BACK
KEYWORDS INDEX
U PV EDR A TED SION capacities, human dignity, self esteem and self confidence” and that this must be achieved in ways that are child centred, child friendly and reflect the rights and inherent dignity of the child (para. 2). States parties are reminded that children’s right to education include all children, and that girls should be enabled to participate in education, without discrimination of any kind (art. 2). 29. Parental and public responsibilities for early childhood education. The principle that parents (and other primary caregivers) are children’s first educators is well established and endorsed within the Convention’s emphasis on respect for the responsibilities of parents (sect. IV above). They are expected to provide appropriate direction and guidance to young children in the exercise of their rights, and provide an environment of reliable and affectionate relationships based on respect and understanding (art. 5). The Committee invites States parties to make this principle a starting point for planning early education, in two respects: a) In providing appropriate assistance to parents in the performance of their child rearing responsibilities (art. 18.2), States parties should take all appropriate measures to enhance parents’ understanding of their role in their children’s early education, encourage child rearing practices which are child centred, encourage respect for the child’s dignity and provide opportunities for developing understanding, self esteem and self confidence; b) In planning for early childhood, States parties should at all times aim to provide programmes that complement the parents’ role and are developed as far as possible in partnership with parents, including through active cooperation between parents, professionals and others in developing “the child’s personality, talents and mental and physical abilities to their fullest potential” (art. 29.1 (a)). 30. The Committee calls on States parties to ensure that all young children receive education in the broadest sense (as outlined in paragraph 28 above), which acknowledges a key role for parents, wider family and community, as well as the contribution of organized programmes of early childhood education provided by the State, the community or civil society institutions. Research evidence demonstrates the potential for quality education programmes to have a positive impact on young children’s successful transition to primary school, their educational progress and their long term social adjustment. Many countries and regions now provide comprehensive early education starting at 4 years old, which in some countries is integrated with childcare for working parents. Acknowledging that traditional divisions between “care” and “education” services have not always been in children’s best interests, the concept of “Educare” is sometimes used to signal a shift towards integrated services, and reinforces the recognition of the need for a coordinated, holistic, multisectoral approach to early childhood.
a legislative framework for the provision of quality, adequately resourced services, and for ensuring that standards are tailored to the circumstances of particular groups and individuals and to the developmental priorities of particular age groups, from infancy through to transition into school. They are encouraged to construct high quality, developmentally appropriate and culturally relevant programmes and to achieve this by working with local communities rather by imposing a standardized approach to early childhood care and education. The Committee also recommends that States parties pay greater attention to, and actively support, a rights based approach to early childhood programmes, including initiatives surrounding transition to primary school that ensure continuity and progression, in order to build children’s confidence, communication skills and enthusiasm for learning through their active involvement in, among others, planning activities. 32. The private sector as service provider. With reference to its recommendations adopted during its 2002 day of general discussion on “The private sector as service provider and its role in implementing child rights” (see CRC/C/121, paras. 630 653), the Committee recommends that States parties support the activities of the non governmental sector as a channel for programme implementation. It further calls on all non State service providers (“for profit” as well as “non profit” providers) to respect the principles and provisions of the Convention and, in this regard, reminds States parties of their primary obligation to ensure its implementation. Early childhood professionals in both the State and non State sectors should be provided with thorough preparation, ongoing training and adequate remuneration. In this context, States parties are responsible for service provision for early childhood development. The role of civil society should be complementary to not a substitute for the role of the State. Where non State services play a major role, the Committee reminds States parties that they have an obligation to monitor and regulate the quality of provision to ensure that children’s rights are protected and their best interests served.
31. Community based programmes. The Committee recommends that States parties support early childhood development programmes, including home and community based preschool programmes, in which the empowerment and education of parents (and other caregivers) are main features. States parties have a key role to play in providing
BI A CK N D E X
87
U PV EDR A TED SION 33. Human rights education in early childhood. In light of article 29 and the Committee’s general comment No. 1 (2001), the Committee also recommends that States parties include human rights education within early childhood education. Such education should be participatory and empowering to children, providing them with practical opportunities to exercise their rights and responsibilities in ways adapted to their interests, concerns and evolving capacities. Human rights education of young children should be anchored in everyday issues at home, in childcare centres, in early education programmes and other community settings with which young children can identify. 34. Right to rest, leisure and play. The Committee notes that insufficient attention has been given by States parties and others to the implementation of the provisions of article 31 of the Convention, which guarantees “the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts”. Play is one of the most distinctive features of early childhood. Through play, children both enjoy and challenge their current capacities, whether they are playing alone or with others. The value of creative play and exploratory learning is widely recognized in early childhood education. Yet realizing the right to rest, leisure and play is often hindered by a shortage of opportunities for young children to meet, play and interact in child centred, secure, supportive, stimulating and stress free environments. Children’s right to play space is especially at risk in many urban environments, where the design and density of housing, commercial centres and transport systems combine with noise, pollution and all manner of dangers to create a hazardous environment for young children. Children’s right to play can also be frustrated by excessive domestic chores (especially affecting girls) or by competitive schooling. Accordingly, the Committee appeals to States parties, non governmental organizations and private actors to identify and remove potential obstacles to the enjoyment of these rights by the youngest children, including as part of poverty reduction strategies. Planning for towns, and leisure and play facilities should take account of children’s right to express their views (art. 12), through appropriate consultations. In all these respects, States parties are encouraged to pay greater attention and allocate adequate resources (human and financial) to the implementation of the right to rest, leisure and play.
protected from inappropriate and potentially harmful material. Rapid increases in the variety and accessibility of modern technologies, including Internet based media, are a particular cause for concern. Young children are especially at risk if they are exposed to inappropriate or offensive material. States parties are urged to regulate media production and delivery in ways that protect young children, as well as support parents/caregivers to fulfil their child rearing responsibilities in this regard (art. 18).
YO U N G CHILD RE N IN NEED OF SPECIAL PROTECTION
36. Young children’s vulnerability to risks. Throughout this general comment the Committee notes that large numbers of young children grow up in difficult circumstances that are frequently in violation of their rights. Young children are especially vulnerable to the harm caused by unreliable, inconsistent relationships with parents and caregivers, or growing up in extreme poverty and deprivation, or being surrounded by conflict and violence or displaced from their homes as refugees, or any number of other adversities prejudicial to their well being. Young children are less able to comprehend these adversities or resist harmful effects on their health, or physical, mental, spiritual, moral or social development. They are especially at risk where parents or other caregivers are unable to offer adequate protection, whether due to illness, or death, or due to disruption to families or communities. Whatever the difficult circumstances, young children require particular consideration because of the rapid developmental changes they are experiencing; they are more vulnerable to disease, trauma, and distorted or disturbed development, and they are relatively powerless to avoid or resist difficulties and are dependent on others to offer protection and promote their best interests. In the following paragraphs, the Committee draws States parties’ attention to major difficult circumstances referred to in the Convention that have clear implications for rights in early childhood. This list is not exhaustive, and children may in any case be subject to multiple risks. In general, the goal of States parties should be to ensure that every child, in every circumstance, receives adequate protection in fulfilment of their rights:
35. Modern communications technologies and early childhood. Article 17 recognizes the potential for both traditional print based media and modern information technology based mass media to contribute positively to the realization of children’s rights. Early childhood is a specialist market for publishers and media producers, who should be encouraged to disseminate material that is appropriate to the capacities and interests of young children, socially and educationally beneficial to their well being, and which reflects the national and regional diversities of children’s circumstances, culture and language. Particular attention should be given to the need of minority groups for access to media that promote their recognition and social inclusion. Article 17 (e) also refers to the role of States parties in ensuring that children are 88
BACK
KEYWORDS INDEX
U PV EDR A TED SION a) Abuse and neglect (art. 19). Young children are frequent victims of neglect, maltreatment and abuse, including physical and mental violence. Abuse very often happens within families, which can be especially destructive. Young children are least able to avoid or resist, least able to comprehend what is happening and least able to seek the protection of others. There is compelling evidence that trauma as a result of neglect and abuse has negative impacts on development, including, for the very youngest children, measurable effects on processes of brain maturation. Bearing in mind the prevalence of abuse and neglect in early childhood and the evidence that it has long term repercussions, States parties should take all necessary measures to safeguard young children at risk and offer protection to victims of abuse, taking positive steps to support their recovery from trauma while avoiding stigmatization for the violations they have suffered; b) Children without families (art. 20 and 21). Children’s rights to development are at serious risk when they are orphaned, abandoned or deprived of family care or when they suffer long term disruptions to relationships or separations (e.g. due to natural disasters or other emergencies, epidemics such as HIV/AIDS, parental imprisonment, armed conflicts, wars and forced migration). These adversities will impact on children differently depending on their personal resilience, their age and their circumstances, as well as the availability of wider sources of support and alternative care. Research suggests that low quality institutional care is unlikely to promote healthy physical and psychological development and can have serious negative consequences for long term social adjustment, especially for children under 3 but also for children under 5 years old. To the extent that alternative care is required, early placement in family based or family like care is more likely to produce positive outcomes for young children. States parties are encouraged to invest in and support forms of alternative care that can ensure security, continuity of care and affection, and the opportunity for young children to form long term attachments based on mutual trust and respect, for example through fostering, adoption and support for members of extended families. Where adoption is envisaged “the best interests of the child shall be the paramount consideration” (art. 21), not just “a primary consideration” (art. 3), systematically bearing in mind and respecting all relevant rights of the child and obligations of States parties set out elsewhere in the Convention and recalled in the present general comment; c) Refugees (art. 22). Young children who are refugees are most likely to be disoriented, having lost much that is familiar in their everyday surroundings and relationships. They and their parents are entitled to equal access to health care, education and other services. Children who are unaccompanied or separated from their families are especially at risk. The Committee offers detailed guidance on the care and protection of these children in general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin; d) Children with disabilities (art. 23). Early childhood is the period during which disabilities are usually identified and the impact on children’s well being and development recognized. Young children should never be institutionalized
solely on the grounds of disability. It is a priority to ensure that they have equal opportunities to participate fully in education and community life, including by the removal of barriers that impede the realization of their rights. Young disabled children are entitled to appropriate specialist assistance, including support for their parents (or other caregivers). Disabled children should at all times be treated with dignity and in ways that encourage their self reliance. (See also the recommendations from the Committee’s 1997 day of general discussion on “The rights of children with disabilities” contained in document CRC/C/66.); e) Harmful work (art. 32). In some countries and regions, children are socialized to work from an early age, including in activities that are potentially hazardous, exploitative and damaging to their health, education and long term prospects. For example, young children may be initiated into domestic work or agricultural labour, or assist parents or siblings engaged in hazardous activities. Even very young babies may be vulnerable to economic exploitation, as when they are used or hired out for begging. Exploitation of young children in the entertainment industry, including television, film, advertising and other modern media, is also a cause for concern. States parties have particular responsibilities in relation to extreme forms of hazardous child labour identified in the Worst Forms of Child Labour Convention, 1999 (No. 182) of the ILO; f) Substance abuse (art. 33). While very young children are only rarely likely to be substance abusers, they may require specialist health care if born to alcohol or drug addicted mothers, and protection where family members are abusers and they are at risk of exposure to drugs. They may also suffer adverse consequences of alcohol or drug abuse on family living standards and quality of care, as well as being at risk of early initiation into substance abuse; g) Sexual abuse and exploitation (art. 34). Young children, especially girls, are vulnerable to early sexual abuse and exploitation within and outside families. Young children in difficult circumstances are at particular risk, for example girl children employed as domestic workers. Young children may also be victims of producers of pornography; this is covered by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of 2002; h) Sale, trafficking and abduction of children (art. 35). The Committee has frequently expressed concern about evidence of the sale and trafficking of abandoned and separated children for various purposes. As far as the youngest age groups are concerned, these purposes can include adoption, particularly (though not solely) by foreigners. In addition to the Optional Protocol on the sale of children, child prostitution and child pornography, the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption provides a framework and mechanism for preventing abuses in this sphere, and the Committee has therefore always consistently and strongly urged all States parties that recognize and/or permit adoption to ratify or accede to this treaty. Universal birth registration, in addition to international cooperation, can help to combat this violation of rights;
BI A CK N D E X
89
U PV EDR A TED SION i) Deviant behaviour and lawbreaking (art. 40). Under no circumstances should young children (defined as under 8 years old; see paragraph 4) be included in legal definitions of minimum age of criminal responsibility. Young children who misbehave or violate laws require sympathetic help and understanding, with the goal of increasing their capacities for personal control, social empathy and conflict resolution. States parties should ensure that parents/ caregivers are provided adequate support and training to fulfil their responsibilities (art. 18) and that young children have access to quality early childhood education and care, and (where appropriate) specialist guidance/therapies. 37. In each of these circumstances, and in the case of all other forms of exploitation (art. 36), the Committee urges States parties to incorporate the particular situation of young children into all legislation, policies and interventions to promote physical and psychological recovery and social reintegration within an environment that promotes dignity and self respect (art. 39).
CAPACITY BUILDING FOR EARLY CHILDHOOD
38. Resource allocation for early childhood. In order to ensure that young children’s rights are fully realized during this crucial phase of their lives (and bearing in mind the impact of early childhood experiences on their long term prospects), States parties are urged to adopt comprehensive, strategic and time bound plans for early childhood within a rights based framework. This requires an increase in human and financial resource allocations for early childhood services and programmes (art. 4). The Committee acknowledges that States parties implementing child rights in early childhood do so from very different starting points, in terms of existing infrastructures for early childhood policies, services and professional training, as well as levels of resources potentially available to allocate to early childhood. The Committee also acknowledges that States parties may be faced with competing priorities to implement rights throughout childhood, for example where universal health services and primary education have still not been achieved. It is nonetheless important that there be sufficient public investment in services, infrastructure and overall resources specifically allocated to early childhood, for the many reasons set out in this general comment. In this connection, States parties are encouraged to develop strong and equitable partnerships between the Government, public services, non governmental organizations, the private sector and families to finance comprehensive services in support of young children’s rights. Finally, the Committee emphasizes that where services are decentralized, this should not be to the disadvantage of young children. 39. Data collection and management. The Committee reiterates the importance of comprehensive and up to date quantitative and qualitative data on all aspects of early childhood for the formulation, monitoring and evaluation of progress achieved, and for assessment of the impact of policies. The Committee is aware that many States parties lack adequate national data collection systems on early childhood for many areas covered by the Convention, and in particular that specific and disaggregated information on children in the early years is not readily available. The Committee urges all States parties to develop a system of data collection and indicators consistent with the Convention and disaggregated by gender, age, family structure, urban and rural residence, and other relevant categories. This system should cover all children up to the age of 18 years, with specific emphasis on early childhood, particularly children belonging to vulnerable groups. 40. Capacity building for research in early childhood. The Committee noted earlier in this general comment that extensive research has been carried out on aspects of children’s health, growth, and cognitive, social and cultural development, on the influence of both positive and negative factors on their well being, and on the potential impact of early childhood care and education programmes. Increasingly, research is also being carried out on early childhood from a human rights perspective, notably on ways that children’s participatory rights can be respected, including through their participation in
90
BACK
KEYWORDS INDEX
U PV EDR A TED SION the research process. Theory and evidence from early childhood research has a great deal to offer in the development of policies and practices, as well as in the monitoring and evaluation of initiatives and the education and training of all responsible for the well being of young children. But the Committee also draws attention to the limitations of current research, through its focus mainly on early childhood in a limited range of contexts and regions of the world. As part of planning for early childhood, the Committee encourages States parties to develop national and local capacities for early childhood research, especially from a rights based perspective. 41. Training for rights in early childhood. Knowledge and expertise about early childhood are not static but change over time. This is due variously to social trends impacting on the lives of young children, their parents and other caregivers, changing policies and priorities for their care and education, innovations in childcare, curricula and pedagogy, as well as the emergence of new research. Implementing child rights in early childhood sets challenges for all those responsible for children, as well as for children themselves as they gain an understanding of their role in their families, schools and communities. States parties are encouraged to undertake systematic child rights training for children and their parents, as well as for all professionals working for and with children, in particular parliamentarians, judges, magistrates, lawyers, law enforcement officials, civil servants, personnel in institutions and places of detention for children, teachers, health personnel, social workers and local leaders. Furthermore, the Committee urges States parties to conduct awareness raising campaigns for the public at large. 42. International assistance. Acknowledging the resource constraints affecting many States parties seeking to implement the comprehensive provisions outlined in this general comment, the Committee recommends that donor institutions, including the World Bank, other United Nations bodies and bilateral donors support early childhood development programmes financially and technically, and that it be one of their main targets in assisting sustainable development in countries receiving international assistance. Effective international cooperation can also strengthen capacity building for early childhood, in terms of policy development, programme development, research and professional training. 43. Looking forward. The Committee urges all States parties, inter governmental organizations, non governmental organizations, academics, professional groups and grass roots communities to continue advocating for the establishment of independent institutions on children’s rights and foster continuous, high level policy dialogues and research on the crucial importance of quality in early childhood, including dialogues at international, national, regional and local levels.
BI A CK N D E X
91
Number 8
U PV EDR A TED SION
in improving the system of promotion and protection of the rights of the child and decided to continue to devote attention to it in the process of examining States parties’ reports”.2
O B JEC T I VES 1. Following its two days of general discussion on violence against children, held in 2000 and 2001, the Committee on the Rights of the Child resolved to issue a series of general comments concerning eliminating violence against children, of which this is the first. The Committee aims to guide States parties in understanding the provisions of the Convention concerning the protection of children against all forms of violence. This general comment focuses on corporal punishment and other cruel or degrading forms of punishment, which are currently very widely accepted and practised forms of violence against children. 2. The Convention on the Rights of the Child and other international human rights instruments recognize the right of the child to respect for the child’s human dignity and physical integrity and equal protection under the law. The Committee is issuing this general comment to highlight the obligation of all States parties to move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment of children and to outline the legislative and other awareness-raising and educational measures that States must take. 3. Addressing the widespread acceptance or tolerance of corporal punishment of children and eliminating it, in the family, schools and other settings, is not only an obligation of States parties under the Convention. It is also a key strategy for reducing and preventing all forms of violence in societies.
B A C KG ROUND 4. The Committee has, from its earliest sessions, paid special attention to asserting children’s right to protection from all forms of violence. In its examination of States parties’ reports, and most recently in the context of the United Nations Secretary-General’s study on violence against children, it has noted with great concern the widespread legality and persisting social approval of corporal punishment and other cruel or degrading punishment of children.1 Already in 1993, the Committee noted in the report of its fourth session that it “recognized the importance of the question of corporal punishment 1 United Nations Secretary-General’s Study on Violence against Children, due to report to United Nations General Assembly, autumn 2006. For details see http:// www.violencestudy.org. 94
5. Since it began examining States parties’ reports the Committee has recommended prohibition of all corporal punishment, in the family and other settings, to more than 130 States in all continents.3 The Committee is encouraged that a growing number of States are taking appropriate legislative and other measures to assert children’s right to respect for their human dignity and physical integrity and to equal protection under the law. The Committee understands that by 2006, more than 100 States had prohibited corporal punishment in their schools and penal systems for children. A growing number have completed prohibition in the home and family and all forms of alternative care.4 6. In September 2000, the Committee held the first of two days of general discussion on violence against children. It focused on “State violence against children” and afterwards adopted detailed recommendations, including for the prohibition of all corporal punishment and the launching of public information campaigns “to raise awareness and sensitize the public about the severity of human rights violations in this domain and their harmful impact on children, and to address cultural acceptance of violence against children, promoting instead ‘zero-tolerance’ of violence”. 5 7. In April 2001, the Committee adopted its first general comment on “The aims of education” and reiterated that corporal punishment is incompatible with the Convention: “… Children do not lose their human rights by virtue of passing through the school gates. Thus, for example, education must be provided in a way that respects the inherent dignity of the child, enables the child to express his or her views freely in accordance with article 12, paragraph 1, and to participate in school life. Education must also be provided in a way that respects the strict limits on discipline reflected in article 28, paragraph 2, and promotes non-violence in school. The Committee has repeatedly made clear in its concluding observations that the use of corporal punishment does not respect the inherent dignity of the child nor the strict limits on school discipline …”6. 8. In recommendations adopted following the second day of general discussion, on “Violence against children within the family and in schools”, held in September 2001, the Committee called upon States to “enact or repeal, as a 2 Committee on the Rights of the Child, Report on the fourth session, 25 October 1993, CRC/C/20, para. 176. 3 All the Committee’s concluding observations can be viewed at www.ohchr.org. 4 The Global Initiative to End All Corporal Punishment of Children provides reports on the legal status of corporal punishment at www.endcorporalpunishment. org. 5 Committee on the Rights of the Child, day of general discussion on State violence against children, Report on the twenty-fifth session, September/October 2000, CRC/C/100, paras. 666-688. 6 Committee on the Rights of the Child, general comment No. 1, The aims of education, 17 April 2001, CRC/GC/2001/1, para. 8.
BACK
KEYWORDS INDEX
U PV EDR A TED SION matter of urgency, their legislation in order to prohibit all forms of violence, however light, within the family and in schools, including as a form of discipline, as required by the provisions of the Convention ...”.7
The healthy development of children depends on parents and other adults for necessary guidance and direction, in line with children’s evolving capacities, to assist their growth towards responsible life in society.
9. Another outcome of the Committee’s 2000 and 2001 days of general discussion was a recommendation that the United Nations Secretary-General should be requested, through the General Assembly, to carry out an in-depth international study on violence against children. The United Nations General Assembly took this forward in 2001.8 Within the context of the United Nations study, carried out between 2003 and 2006, the need to prohibit all currently legalized violence against children has been highlighted, as has children’s own deep concern at the almost universal high prevalence of corporal punishment in the family and also its persisting legality in many States in schools and other institutions, and in penal systems for children in conflict with the law.
14. The Committee recognizes that parenting and caring for children, especially babies and young children, demand frequent physical actions and interventions to protect them. This is quite distinct from the deliberate and punitive use of force to cause some degree of pain, discomfort or humiliation. As adults, we know for ourselves the difference between a protective physical action and a punitive assault; it is no more difficult to make a distinction in relation to actions involving children. The law in all States, explicitly or implicitly, allows for the use of non-punitive and necessary force to protect people.
DEF I N I TI ONS 10. “Child” is defined as in the Convention as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.9 11. The Committee defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading. In addition, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child. 12. Corporal punishment and other cruel or degrading forms of punishment of children take place in many settings, including within the home and family, in all forms of alternative care, schools and other educational institutions and justice systems - both as a sentence of the courts and as a punishment within penal and other institutions - in situations of child labour, and in the community. 13. In rejecting any justification of violence and humiliation as forms of punishment for children, the Committee is not in any sense rejecting the positive concept of discipline. 7 Committee on the Rights of the Child, day of general discussion on violence against children within the family and in schools, Report on the twenty-eighth session, September/October 2001, CRC/C/111, paras. 701-745. 8 General Assembly resolution 56/138. 9 Article 1.
15. The Committee recognizes that there are exceptional circumstances in which teachers and others, e.g. those working with children in institutions and with children in conflict with the law, may be confronted by dangerous behaviour which justifies the use of reasonable restraint to control it. Here too there is a clear distinction between the use of force motivated by the need to protect a child or others and the use of force to punish. The principle of the minimum necessary use of force for the shortest necessary period of time must always apply. Detailed guidance and training is also required, both to minimize the necessity to use restraint and to ensure that any methods used are safe and proportionate to the situation and do not involve the deliberate infliction of pain as a form of control.
HUMAN RIGHTS
STANDARDS AND CORPORAL PUNISHMENT OF CHILDREN 16. Before the adoption of the Convention on the Rights of the Child, the International Bill of Human Rights - the Universal Declaration and the two International Covenants, on Civil and Political Rights and on Economic, Social and Cultural Rights - upheld “everyone’s” right to respect for his/her human dignity and physical integrity and to equal protection under the law. In asserting States’ obligation to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment, the Committee notes that the Convention on the Rights of the Child builds on this foundation. The dignity of each and every individual is the fundamental guiding principle of international human rights law. 17. The preamble to the Convention on the Rights of the Child affirms, in accordance with the principles in the Charter of the United Nations, repeated in the preamble to the Universal Declaration, that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. The preamble to the Convention also recalls that, in the Universal Declaration, the United Nations “has proclaimed that childhood is entitled to special care and assistance”.
BI A CK N D E X
95
U PV EDR A TED SION 18. Article 37 of the Convention requires States to ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”. This is complemented and extended by article 19, which requires States to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”. There is no ambiguity: “all forms of physical or mental violence” does not leave room for any level of legalized violence against children. Corporal punishment and other cruel or degrading forms of punishment are forms of violence and States must take all appropriate legislative, administrative, social and educational measures to eliminate them. 19. In addition, article 28, paragraph 2, of the Convention refers to school discipline and requires States parties to “take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention”. 20. Article 19 and article 28, paragraph 2, do not refer explicitly to corporal punishment. The travaux préparatoires for the Convention do not record any discussion of corporal punishment during the drafting sessions. But the Convention, like all human rights instruments, must be regarded as a living instrument, whose interpretation develops over time. In the 17 years since the Convention was adopted, the prevalence of corporal punishment of children in their homes, schools and other institutions has become more visible, through the reporting process under the Convention and through research and advocacy by, among others, national human rights institutions and nongovernmental organizations (NGOs). 21. Once visible, it is clear that the practice directly conflicts with the equal and inalienable rights of children to respect for their human dignity and physical integrity. The distinct nature of children, their initial dependent and developmental state, their unique human potential as well as their vulnerability, all demand the need for more, rather than less, legal and other protection from all forms of violence. 22. The Committee emphasizes that eliminating violent and humiliating punishment of children, through law reform and other necessary measures, is an immediate and unqualified obligation of States parties. It notes that other treaty bodies, including the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee against Torture have reflected the same view in their concluding observations on States parties’ reports under the relevant instruments, recommending prohibition and other measures against corporal punishment in schools, penal systems and, in some cases, the family. For example, the Committee on Economic, Social and Cultural Rights, in its general comment No. 13 (1999) on “The right to education” stated: “In the Committee’s view, corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined 96
in the Preambles to the Universal Declaration and both Covenants: the dignity of the individual. Other aspects of school discipline may also be inconsistent with school discipline, including public humiliation.”10 23. Corporal punishment has also been condemned by regional human rights mechanisms. The European Court of Human Rights, in a series of judgements, has progressively condemned corporal punishment of children, first in the penal system, then in schools, including private schools, and most recently in the home.11 The European Committee of Social Rights, monitoring compliance of member States of the Council of Europe with the European Social Charter and Revised Social Charter, has found that compliance with the Charters requires prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere.12 24. An Advisory Opinion of the Inter-American Court of Human Rights, on the Legal Status and Human Rights of the Child (2002) holds that the States parties to the American Convention on Human Rights “are under the obligation … to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities”. The Court quotes provisions of the Convention on the Rights of the Child, conclusions of the Committee on the Rights of the Child and also judgements of the European Court of Human Rights relating to States’ obligations to protect children from violence, including within the family. The Court concludes that “the State has the duty to adopt positive measures to fully ensure effective exercise of the rights of the child”.13 25. The African Commission on Human and Peoples’ Rights monitors implementation of the African Charter on Human and Peoples’ Rights. In a 2003 decision on an individual communication concerning a sentence of “lashes” imposed on students, the Commission found that the punishment violated article 5 of the African Charter, which prohibits cruel, inhuman or degrading punishment. It requested the relevant Government to amend the law, abolishing the penalty of lashes, and to take appropriate measures to ensure compensation of the victims. In its decision, the Commission states: “There is no right for individuals, and particularly the Government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State-sponsored torture 10 Committee on Economic, Social and Cultural Rights, general comment No. 13, The right to education (art. 13), 1999, para. 41. 11 Corporal punishment was condemned in a series of decisions of the European Commission on Human Rights and judgements of the European Court of Human Rights; see in particular Tyrer v. UK, 1978; Campbell and Cosans v. UK, 1982; Costello-Roberts v. UK, 1993; A v. UK, 1998. European Court judgements are available at http://www.echr.coe.int/echr. 12 European Committee of Social Rights, general observations regarding article 7, paragraph 10, and article 17. Conclusions XV-2, Vol. 1, General Introduction, p. 26, 2001; the Committee has since issued conclusions, finding a number of Member States not in compliance because of their failure to prohibit all corporal punishment in the family and in other settings. In 2005 it issued decisions on collective complaints made under the charters, finding three States not in compliance because of their failure to prohibit. For details, see http://www.coe. int/T/E/Human_Rights/Esc/; also Eliminating corporal punishment: a human rights imperative for Europe’s children, Council of Europe Publishing, 2005. 13 Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of 28 August 2002, paras. 87 and 91.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
under the Charter and contrary to the very nature of this human rights treaty.”14 The Committee on the Rights of the Child is pleased to note that constitutional and other high-level courts in many countries have issued decisions condemning corporal punishment of children in some or all settings, and in most cases quoting the Convention on the Rights of the Child.15 26. When the Committee on the Rights of the Child has raised eliminating corporal punishment with certain States during the examination of their reports, governmental representatives have sometimes suggested that some level of “reasonable” or “moderate” corporal punishment can be justified as in the “best interests” of the child. The Committee has identified, as an important general principle, the Convention’s requirement that the best interests of the child should be a primary consideration in all actions concerning children (art. 3, para. 1). The Convention also asserts, in article 18, that the best interests of the child will be parents’ basic concern. But interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence and the requirement to give due weight to the child’s views; it cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. 14 African Commission on Human and Peoples’ Rights, Curtis Francis Doebbler v. Sudan, Comm. No. 236/2000 (2003); see para. 42. 15 For example, in 2002 the Fiji Court of Appeal declared corporal punishment in schools and the penal system unconstitutional. The judgement declared: “Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students” (Fiji Court of Appeal, Naushad Ali v. State, 2002). In 1996, Italy’s highest Court, the Supreme Court of Cassation in Rome, issued a decision that effectively prohibited all parental use of corporal punishment. The judgement states: “… The use of violence for educational purposes can no longer be considered lawful. There are two reasons for this: the first is the overriding importance which the [Italian] legal system attributes to protecting the dignity of the individual. This includes ‘minors’ who now hold rights and are no longer simply objects to be protected by their parents or, worse still, objects at the disposal of their parents. The second reason is that, as an educational aim, the harmonious development of a child’s personality, which ensures that he/she embraces the values of peace, tolerance and co existence, cannot be achieved by using violent means which contradict these goals” (Cambria, Cass, sez. VI, 18 Marzo 1996 [Supreme Court of Cassation, 6th Penal Section, 18 March 1996], Foro It II 1996, 407 (Italy)). Also see South African Constitutional Court (2000) Christian Education South Africa v. Minister of Education, CCT4/00; 2000 (4) SA757 (CC); 2000 (10) BCLR 1051 (CC), 18 August 2000.
27. The preamble to the Convention upholds the family as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children”. The Convention requires States to respect and support families. There is no conflict whatsoever with States’ obligation to ensure that the human dignity and physical integrity of children within the family receive full protection alongside other family members. 28. Article 5 requires States to respect the responsibilities, rights and duties of parents “to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention”. Here again, interpretation of “appropriate” direction and guidance must be consistent with the whole Convention and leaves no room for justification of violent or other cruel or degrading forms of discipline. 29. Some raise faith-based justifications for corporal punishment, suggesting that certain interpretations of religious texts not only justify its use, but provide a duty to use it. Freedom of religious belief is upheld for everyone in the International Covenant on Civil and Political Rights (art. 18), but practice of a religion or belief must be consistent with respect for others’ human dignity and physical integrity. Freedom to practise one’s religion or belief may be legitimately limited in order to protect the fundamental rights and freedoms of others. In certain States, the Committee has found that children, in some cases from a very young age, in other cases from the time that they are judged to have reached puberty, may be sentenced to punishments of extreme violence, including stoning and amputation, prescribed under certain interpretations of religious law. Such punishments plainly violate the Convention and other international human rights standards, as has been highlighted also by the Human Rights Committee and the Committee against Torture, and must be prohibited.
BI A CK N D E X
97
U PV EDR A TED SION 32. In some States, corporal punishment is specifically authorized in schools and other institutions, with regulations setting out how it is to be administered and by whom. And in a minority of States, corporal punishment using canes or whips is still authorized as a sentence of the courts for child offenders. As frequently reiterated by the Committee, the Convention requires the repeal of all such provisions. 33. In some States, the Committee has observed that while there is no explicit defence or justification of corporal punishment in the legislation, nevertheless traditional attitudes to children imply that corporal punishment is permitted. Sometimes these attitudes are reflected in court decisions (in which parents or teachers or other carers have been acquitted of assault or ill treatment on the grounds that they were exercising a right or freedom to use moderate “correction”).
MEASURES
AND MECHANISMS REQUIRED TO ELIMINATE CORPORAL PUNISHMENT AND OTHER CRUEL OR DEGRADING FORMS OF PUNISHMENT 1. LEGISLATIVE MEASURES 30. The wording of article 19 of the Convention builds upon article 4 and makes clear that legislative as well as other measures are required to fulfil States’ obligations to protect children from all forms of violence. The Committee has welcomed the fact that, in many States, the Convention or its principles have been incorporated into domestic law. All States have criminal laws to protect citizens from assault. Many have constitutions and/or legislation reflecting international human rights standards and article 37 of the Convention on the Rights of the Child, which uphold “everyone’s” right to protection from torture and cruel, inhuman or degrading treatment or punishment. Many also have specific child protection laws that make “ill treatment” or “abuse” or “cruelty” an offence. But the Committee has learned from its examination of States’ reports that such legislative provisions do not generally guarantee the child protection from all corporal punishment and other cruel or degrading forms of punishment, in the family and in other settings. 31. In its examination of reports, the Committee has noted that in many States there are explicit legal provisions in criminal and/or civil (family) codes that provide parents and other carers with a defence or justification for using some degree of violence in “disciplining” children. For example, the defence of “lawful”, “reasonable” or “moderate” chastisement or correction has formed part of English common law for centuries, as has a “right of correction” in French law. At one time in many States the same defence was also available to justify the chastisement of wives by their husbands and of slaves, servants and apprentices by their masters. The Committee emphasizes that the Convention requires the removal of any provisions (in statute or common - case law) that allow some degree of violence against children (e.g. “reasonable” or “moderate” chastisement or correction), in their homes/families or in any other setting. 98
34. In the light of the traditional acceptance of violent and humiliating forms of punishment of children, a growing number of States have recognized that simply repealing authorization of corporal punishment and any existing defences is not enough. In addition, explicit prohibition of corporal punishment and other cruel or degrading forms of punishment, in their civil or criminal legislation, is required in order to make it absolutely clear that it is as unlawful to hit or “smack” or “spank” a child as to do so to an adult, and that the criminal law on assault does apply equally to such violence, regardless of whether it is termed “discipline” or “reasonable correction”. 35. Once the criminal law applies fully to assaults on children, the child is protected from corporal punishment wherever he or she is and whoever the perpetrator is. But in the view of the Committee, given the traditional acceptance of corporal punishment, it is essential that the applicable sectoral legislation - e.g. family law, education law, law relating to all forms of alternative care and justice systems, employment law - clearly prohibits its use in the relevant settings. In addition, it is valuable if professional codes of ethics and guidance for teachers, carers and others, and also the rules or charters of institutions, emphasize the illegality of corporal punishment and other cruel or degrading forms of punishment. 36. The Committee is also concerned at reports that corporal punishment and other cruel or degrading punishments are used in situations of child labour, including in the domestic context. The Committee reiterates that the Convention and other applicable human rights instruments protect the child from economic exploitation and from any work that is likely to be hazardous, interferes with the child’s education, or is harmful to the child’s development, and that they require certain safeguards to ensure the effective enforcement of this protection. The Committee emphasizes that it is essential that the prohibition of corporal punishment and other cruel or degrading forms of punishment must be enforced in any situations in which children are working. 37. Article 39 of the Convention requires States to take all appropriate measures to promote physical and psychological recovery and social reintegration of a child
BACK
KEYWORDS INDEX
U PV EDR A TED SION victim of “any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment”. Corporal punishment and other degrading forms of punishment may inflict serious damage to the physical, psychological and social development of children, requiring appropriate health and other care and treatment. This must take place in an environment that fosters the integral health, self-respect and dignity of the child, and be extended as appropriate to the child’s family group. There should be an interdisciplinary approach to planning and providing care and treatment, with specialized training of the professionals involved. The child’s views should be given due weight concerning all aspects of their treatment and in reviewing it.
investigated and their protection from significant harm assured, the aim should be to stop parents from using violent or other cruel or degrading punishments through supportive and educational, not punitive, interventions. 41. Children’s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children’s best interests. It is the Committee’s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child. The affected child’s views should be given due weight, according to his or her age and maturity.
2. IMPLEMENTATION OF PROHIBITION OF CORPORAL PUNISHMENT AND OTHER CRUEL OR DEGRADING FORMS OF PUNISHMENT 42. Advice and training for all those involved in child 38. The Committee believes that implementation of the prohibition of all corporal punishment requires awarenessraising, guidance and training (see paragraph 45 et seq. below) for all those involved. This must ensure that the law operates in the best interests of the affected children - in particular when parents or other close family members are the perpetrators. The first purpose of law reform to prohibit corporal punishment of children within the family is prevention: to prevent violence against children by changing attitudes and practice, underlining children’s right to equal protection and providing an unambiguous foundation for child protection and for the promotion of positive, non-violent and participatory forms of child rearing. 39. Achieving a clear and unconditional prohibition of all corporal punishment will require varying legal reforms in different States parties. It may require specific provisions in sectoral laws covering education, juvenile justice and all forms of alternative care. But it should be made explicitly clear that the criminal law provisions on assault also cover all corporal punishment, including in the family. This may require an additional provision in the criminal code of the State party. But it is also possible to include a provision in the civil code or family law, prohibiting the use of all forms of violence, including all corporal punishment. Such a provision emphasizes that parents or other caretakers can no longer use any traditional defence that it is their right (“reasonably” or “moderately”) to use corporal punishment if they face prosecution under the criminal code. Family law should also positively emphasize that parental responsibility includes providing appropriate direction and guidance to children without any form of violence.
protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law. Guidance should also emphasize that article 9 of the Convention requires that any separation of the child from his or her parents must be deemed necessary in the best interests of the child and be subject to judicial review, in accordance with applicable law and procedures, with all interested parties, including the child, represented. Where separation is deemed to be justified, alternatives to placement of the child outside the family should be considered, including removal of the perpetrator, suspended sentencing, and so on. 43. Where, despite prohibition and positive education and training programmes, cases of corporal punishment come to light outside the family home - in schools, other institutions and forms of alternative care, for example prosecution may be a reasonable response. The threat to the perpetrator of other disciplinary action or dismissal should also act as a clear deterrent. It is essential that the prohibition of all corporal punishment and other cruel or degrading punishment, and the sanctions that may be imposed if it is inflicted, should be well disseminated to children and to all those working with or for children in all settings. Monitoring disciplinary systems and the treatment of children must be part of the sustained supervision of all institutions and placements which is required by the Convention. Children and their representatives in all such placements must have immediate and confidential access to child-sensitive advice, advocacy and complaints procedures and ultimately to the courts, with necessary legal and other assistance. In institutions, there should be a requirement to report and to review any violent incidents.
40. The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by their parents that come to light should lead to prosecution of parents. The de minimis principle - that the law does not concern itself with trivial matters - ensures that minor assaults between adults only come to court in very exceptional circumstances; the same will be true of minor assaults on children. States need to develop effective reporting and referral mechanisms. While all reports of violence against children should be appropriately
BI A CK N D E X
99
U PV EDR A TED SION 3. EDUCATIONAL AND OTHER MEASURES 44. Article 12 of the Convention underlines the importance of giving due consideration to children’s views on the development and implementation of educational and other measures to eradicate corporal punishment and other cruel or degrading forms of punishment. 45. Given the widespread traditional acceptance of corporal punishment, prohibition on its own will not achieve the necessary change in attitudes and practice. Comprehensive awareness raising of children’s right to protection and of the laws that reflect this right is required. Under article 42 of the Convention, States undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike. 46. In addition, States must ensure that positive, nonviolent relationships and education are consistently promoted to parents, carers, teachers and all others who work with children and families. The Committee emphasizes that the Convention requires the elimination not only of corporal punishment but of all other cruel or degrading punishment of children. It is not for the Convention to prescribe in detail how parents should relate to or guide their children. But the Convention does provide a framework of principles to guide relationships both within the family, and between teachers, carers and others and children. Children’s developmental needs must be respected. Children learn from what adults do, not only from what adults say. When the adults to whom a child most closely relates use violence and humiliation in their relationship with the child, they are demonstrating disrespect for human rights and teaching a potent and dangerous lesson that these are legitimate ways to seek to resolve conflict or change behaviour. 47. The Convention asserts the status of the child as an individual person and holder of human rights. The child is not a possession of parents, nor of the State, nor simply an object of concern. In this spirit, article 5 requires parents (or, where applicable, members of the extended family or community) to provide the child with appropriate direction and guidance, in a manner consistent with his/ her evolving capacities, in the exercise by the child of the rights recognized in the Convention. Article 18, which underlines the primary responsibility of parents, or legal guardians, for the upbringing and development of the child, states that “the best interests of the child will be their basic concern”. Under article 12, States are required to assure children the right to express their views freely “in all matters affecting the child”, with the views of the child being given due weight in accordance with age and maturity. This emphasizes the need for styles of parenting, caring and teaching that respect children’s participation rights. In its general comment No. 1 on “The aims of education”, the Committee has emphasized the importance of developing education that is “child-centred, child-friendly and empowering”.16 48. The Committee notes that there are now many examples of materials and programmes promoting 16 See note 11. 100
positive, non-violent forms of parenting and education, addressed to parents, other carers and teachers and developed by Governments, United Nations agencies, NGOs and others.17 These can be appropriately adapted for use in different States and situations. The media can play a very valuable role in awareness-raising and public education. Challenging traditional dependence on corporal punishment and other cruel or degrading forms of discipline requires sustained action. The promotion of non-violent forms of parenting and education should be built into all the points of contact between the State and parents and children, in health, welfare and educational services, including early childhood institutions, day-care centres and schools. It should also be integrated into the initial and in-service training of teachers and all those working with children in care and justice systems. 49. The Committee proposes that States may wish to seek technical assistance from, among others, UNICEF and UNESCO concerning awareness-raising, public education and training to promote non-violent approaches.
4. MONITORING AND EVALUATION 50. The Committee, in its general comment No. 5 on “General measures of implementation for the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) ”, emphasizes the need for systematic monitoring by States parties of the realization of children’s rights, through the development of appropriate indicators and the collection of sufficient and reliable data. 18 51. Therefore States parties should monitor their progress towards eliminating corporal punishment and other cruel or degrading forms of punishment and thus realizing children’s right to protection. Research using interviews with children, their parents and other carers, in conditions of confidentiality and with appropriate ethical safeguards, is essential in order to accurately assess the prevalence of these forms of violence within the family and attitudes to them. The Committee encourages every State to carry out/ commission such research, as far as possible with groups representative of the whole population, to provide baseline information and then at regular intervals to measure progress. The results of this research can also provide valuable guidance for the development of universal and targeted awareness-raising campaigns and training for professionals working with or for children. 52. The Committee also underlines in general comment No. 5 the importance of independent monitoring of implementation by, for example, parliamentary committees, NGOs, academic institutions, professional associations, youth groups and independent human rights institutions (see also the Committee’s general comment No. 2 on “The role of independent national human rights institutions in the protection and promotion of the rights 17 The Committee commends, as one example, UNESCO’s handbook, Eliminating corporal punishment: the way forward to constructive child discipline, UNESCO Publishing, Paris, 2005. This provides a set of principles for constructive discipline, rooted in the Convention. It also includes Internet references to materials and programmes available worldwide. 18 Committee on the Rights of the Child, general comment No. 5 (2003), “General measures of implementation for the Convention on the Rights of the Child”, para. 2.
BACK
KEYWORDS INDEX
U PV EDR A TED SION of the child”).19 These could all play an important role in monitoring the realization of children’s right to protection from all corporal punishment and other cruel or degrading forms of punishment.
REPORTING
REQUIREMENTS UNDER THE CONVENTION
53. The Committee expects States to include in their periodic reports under the Convention information on the measures taken to prohibit and prevent all corporal punishment and other cruel or degrading forms of punishment in the family and all other settings, including on related awareness-raising activities and promotion of positive, non-violent relationships and on the State’s evaluation of progress towards achieving full respect for children’s rights to protection from all forms of violence. The Committee also encourages United Nations agencies, national human rights institutions, NGOs and other competent bodies to provide it with relevant information on the legal status and prevalence of corporal punishment and progress towards its elimination.
19 Committee on the Rights of the Child, general comment No. 2 on “The role of independent national human rights institutions in the promotion and protection of the rights of the child”, 2002.
BI A CK N D E X
101
U PV EDR A TED SION
102
BACK
KEYWORDS INDEX
Number 9
U PV EDR A TED SION
IN T R O DUC T I ON A. WHY A GENERAL COMMENT ON CHILDREN WITH DISABILITIES? 1. It is estimated that there are 500-650 million persons with disabilities in the world, approximately 10 % of the world population, 150 million of whom are children. More than 80 % live in developing countries with little or no access to services. The majority of children with disabilities in developing countries remain out of school and are completely illiterate. It is recognized that most of the causes of disabilities, such as war, illness and poverty, are preventable which also prevent and/or reduce the secondary impacts of disabilities, often caused by the lack of early/timely intervention. Therefore, more should be done to create the necessary political will and real commitment to investigate and put into practice the most effective actions to prevent disabilities with the participation of all levels of society. 2. 2. The past few decades have witnessed positive focus on persons with disabilities in general and children in particular. The reason for this new focus is explained partly by the fact that the voice of persons with disabilities and of their advocates from national and international non governmental organizations (NGO) is being increasingly heard and partly by the growing attention paid to persons with disabilities within the framework of the human rights treaties and the United Nations human rights treaty bodies. These treaty bodies have considerable potential in advancing the rights of persons with disabilities but they have generally been underused. When adopted in November 1989 the Convention on the Rights of the Child (hereafter “the Convention”) was the first human rights treaty that contained a specific reference to disability (article 2 on non-discrimination) and a separate article 23 exclusively dedicated to the rights and needs of children with disabilities. Since the Convention has entered into force (2 September 1990), the Committee on the Rights of the Child (thereafter “the Committee”) has paid sustained and particular attention to disability-based discrimination1 while other human rights treaty bodies have paid attention to disability-based discrimination under “other status” in the context of articles on non-discrimination of their relevant Convention. In 1994 the Committee on Economic, Social and Cultural Rights issued its general comment No. 5 on persons with disabilities and stated in paragraph 1 See Wouter Vandenhole, Non-Discrimination and Equality in the View of the UN Human Rights Treaty Bodies, p.170-172, Antwerpen/Oxford, Intersentia 2005. 104
15 that “The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.” The Special Rapporteur on disability of the United Nations Commission for Social Development was first appointed in 1994 and mandated to monitor of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, adopted by the General Assembly at its forty-eighth session in 1993 (A/RES/48/96, Annex), and to advance the status of persons with disabilities throughout the world. On 6 October 1997 the Committee devoted its day of general discussion to children with disabilities and adopted a set of recommendations (CRC/C/69, paragraphs 310-339), in which it considered the possibility of drafting a general comment on children with disabilities. The Committee notes with appreciation the work of the Ad-Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, and that it adopted at its eighth session, held in New York on 25 August 2006, a draft convention on the rights of persons with disabilities to be submitted to the General Assembly at its sixty-first session (A/AC.265/2006/4, Annex II). 3. The Committee, in reviewing State party reports, has accumulated a wealth of information on the status of children with disabilities worldwide and found that in the overwhelming majority of countries some recommendations had to be made specifically to address the situation of children with disabilities. The problems identified and addressed have varied from exclusion from decision-making processes to severe discrimination and actual killing of children with disabilities. Poverty being both a cause and a consequence of disability, the Committee has repeatedly stressed that children with disabilities and their families have the right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of their living conditions. The question of children with disabilities living in poverty should be addressed by allocating adequate budgetary resources as well as by ensuring that children with disabilities have access to social protection and poverty reduction programmes. 4. The Committee has noted that no reservations or declarations have been entered specifically to article 23 of the Convention by any State party. 5. The Committee also notes that children with disabilities are still experiencing serious difficulties and facing barriers to the full enjoyment of the rights enshrined in the Convention. The Committee emphasizes that the barrier is not the disability itself but rather a combination of social, cultural, attitudinal and physical obstacles which children with disabilities encounter in their daily lives. The strategy for promoting their rights is therefore to take the necessary action to remove those barriers. Acknowledging the importance of articles 2 and 23 of the Convention, the Committee states from the outset that the implementation of the Convention with regards to children with disabilities should not be limited to these articles. 6. 6.
BACK
KEYWORDS INDEX
The present general comment is meant to provide
U PV EDR A TED SION guidance and assistance to States parties in their efforts to implement the rights of children with disabilities, in a comprehensive manner which covers all the provisions of the Convention. Thus, the Committee will first make some observations related directly to articles 2 and 23, then it will elaborate on the necessity of paying particular attention to and including explicitly children with disabilities within the framework of general measures for the implementation of the Convention. Those observations will be followed by comments on the meaning and the implementation of the various articles of the Convention (clustered in accordance with the Committee’s practice) for children with disabilities.
B. DEFINITION 7. According to article 1, paragraph 2, of the draft convention on the rights of persons with disabilities, “Persons with disabilities include those who have longterm physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” (A/AC.265/2006/4, Annex II)
THE KEY PROVISIONS FOR CHILDREN WITH DISABILITIES (ARTS. 2 AND 23)
A. ARTICLE 2 8. Article 2 requires States parties to ensure that all children within their jurisdiction enjoy all the rights enshrined in the Convention without discrimination of any kind. This obligation requires States parties to take appropriate measures to prevent all forms of discrimination, including on the ground of disability. This explicit mention of disability as a prohibited ground for discrimination in article 2 is unique and can be explained by the fact that children with disabilities belong to one of the most vulnerable groups of children. In many cases forms of multiple discrimination based on a combination of factors, i.e. indigenous girls with disabilities, children with disabilities living in rural areas and so on increase the vulnerability of certain groups. It has been therefore felt necessary to mention disability explicitly in the non-discrimination article. Discrimination takes place – often de facto – in various aspects of the life and development of children with disabilities. As an example, social discrimination and stigmatization leads to their marginalization and exclusion, and may even threaten their survival and development if it goes as far as physical or mental violence against children with disabilities. Discrimination in service provision excludes them from education and denies them access to quality health and social services. The lack of appropriate education and vocational training discriminates against them by denying them job opportunities in the future. Social stigma, fears, overprotection, negative attitudes, misbeliefs and prevailing prejudices against children with disabilities remain strong in many communities and lead to the marginalization and alienation of children with disabilities. The Committee shall elaborate on these aspects in the paragraphs below.
9. In general, States parties in their efforts to prevent and eliminate all forms of discrimination against children with disabilities should take the following measures: a) Include explicitly disability as a forbidden ground for discrimination in constitutional provisions on nondiscrimination and/or include specific prohibition of discrimination on the ground of disability in specific antidiscrimination laws or legal provisions. b) Provide for effective remedies in case of violations of the rights of children with disabilities, and ensure that those remedies are easily accessible to children with disabilities and their parents and/or others caring for the child. c) Conduct awareness-raising and educational campaigns targeting the public at large and specific groups of professionals with a view to preventing and eliminating de facto discrimination against children with disabilities. 10. Girls with disabilities are often even more vulnerable to discrimination due to gender discrimination. In this context, States parties are requested to pay particular attention to girls with disabilities by taking the necessary measures, and when needed extra measures, in order to ensure that they are well protected, have access to all services and are fully included in society.
B. ARTCULE 23 11. Paragraph 1 of article 23 should be considered as the leading principle for the implementation of the Convention with respect to children with disabilities: the enjoyment of a full and decent life in conditions that ensure dignity, promote self reliance and facilitate active participation in the community. The measures taken by States parties regarding the realization of the rights of children with disabilities should be directed towards this goal. The core message of this paragraph is that children with disabilities should be included in the society. Measures taken for the implementation of the rights contained in the Convention regarding children with disabilities, for example in the areas of education and health, should explicitly aim at the maximum inclusion of those children in society. 12. According to paragraph 2 of article 23 States parties to the Convention recognize the right of the child with disability to special care and shall encourage and ensure the extension of assistance to the eligible child and those responsible for his or her care. The assistance has to be appropriate to the child’s condition and the circumstances of the parents or others caring for the child. Paragraph 3 of article 23 gives further rules regarding the costs of specific measures and precisions as to what the assistance should try to achieve. 13. In order to meet the requirements of article 23 it is necessary that States parties develop and effectively implement a comprehensive policy by means of a plan of action which not only aims at the full enjoyment of the rights enshrined in the Convention without discrimination but which also ensures that a child with disability and her or his parents and/or others caring for the child do receive the special care and assistance they are entitled to under the Convention.
BI A CK N D E X
105
U PV EDR A TED SION
GENERAL MEASURES
OF IMPLEMENTATION (ARTS. 4, 42 AND 44 (6))2
A. LEGISLACIÓN
14. Regarding the specifics of paragraphs 2 and 3 of article 23, the Committee makes the following observations: a) (a) The provision of special care and assistance is subject to available resources and free of charge whenever possible. The Committee urges States parties to make special care and assistance to children with disabilities a matter of high priority and to invest to the maximum extent of available resources in the elimination of discrimination against children with disabilities and towards their maximum inclusion in society. b) Care and assistance shall be designed to ensure that children with disabilities have effective access to and benefit from education, training, health care services, recovery services, preparation for employment and recreation opportunities. The Committee when dealing with specific articles of the Convention will elaborate on the measures necessary to achieve this. 15. With reference to article 23, paragraph 4, the Committee notes that the international exchange of information between States parties in the areas of prevention and treatment is quite limited. The Committee recommends that States parties take effective, and where appropriate targeted, measures for an active promotion of information as envisaged by article 23, paragraph 4, in order to enable States parties to improve their capabilities and skills in the areas of prevention and treatment of disabilities of children. 16. It is often not clear how and to which degree the needs of developing countries are taken into account as required by article 23, paragraph 4. The Committee strongly recommends States parties to ensure that, within the framework of bilateral or multilateral development assistance, particular attention be paid to children with disabilities and their survival and development in accordance with the provisions of the Convention, for example, by developing and implementing special programmes aiming at their inclusion in society and allocating earmarked budgets to that effect. States parties are invited to provide information in their reports to the Committee on the activities and results of such international cooperation.
106
17. In addition to the legislative measures recommended with regard to non-discrimination (see paragraph 9 above), the Committee recommends that States parties undertake a comprehensive review of all domestic laws and related regulations in order to ensure that all provisions of the Convention are applicable to all children, including children with disabilities who should be mentioned explicitly, where appropriate. National laws and regulations should contain clear and explicit provisions for the protection and exercise of the specific rights of children with disabilities, in particular those enshrined in article 23 of the Convention.
B. NATIONAL PLANS OF ACTION AND POLICIES 18. The need for a national plan of action that integrates all the provisions of the Convention is a well-recognized fact and has often been a recommendation made by the Committee to States parties. Plans of action must be comprehensive, including plans and strategies for children with disabilities, and should have measurable outcomes. The draft convention on the rights of persons with disabilities, in its article 4, paragraph 1 c, emphasizes the importance of inclusion of this aspect stating that States parties undertake “to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes” (A/AC.265/2006/4, annex II). It is also essential that all programmes be adequately supplied with financial and human resources and equipped with built-in monitoring mechanisms, for example, indicators allowing accurate outcome measurements. Another factor that should not be overlooked is the importance of including all children with disabilities in policies and programmes. Some States parties have initiated excellent programmes, but failed to include all children with disabilities.
C. DATA AND STATISTICS 19. In order to fulfil their obligations, it is necessary for States parties to set up and develop mechanisms for collecting data which are accurate, standardized and allow disaggregation, and which reflect the actual situation of children with disabilities. The importance of this issue is often overlooked and not viewed as a priority despite the fact that it has an impact not only on the measures that need to be taken in terms of prevention but also on the distribution of very valuable resources needed to fund programmes. One of the main challenges in obtaining accurate statistics is the lack of a widely accepted clear definition for disabilities. States parties are encouraged to establish an appropriate definition that guarantees the 2 In the present general comment the Committee focuses on the need to pay special attention to children with disabilities in the context of the general measures. For a more elaborated explanation of the content and importance of these measures, see the Committee’s general comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child.
BACK
KEYWORDS INDEX
U PV EDR A TED SION inclusion of all children with disabilities so that children with disabilities may benefit from the special protection and programmes developed for them. Extra efforts are often needed to collect data on children with disabilities because they are often hidden by their parents or others caring for the child.
D. BUDGET 20. Allocation of budget: in the light of article 4 “…States parties shall undertake such measures to the maximum extent of their available resources…”. Although the Convention does not make a specific recommendation regarding the most appropriate percentage of the State budget that should be dedicated to services and programmes for children, it does insist that children should be a priority. The implementation of this right has been a concern to the Committee since many States parties not only do not allocate sufficient resources but have also reduced the budget allocated to children over the years. This trend has many serious implications especially for children with disabilities who often rank quite low, or even not at all, on priority lists. For example, if a State party is failing to allocate sufficient funds to ensure compulsory and free quality education for all children, it will be unlikely to allocate funds to train teachers for children with disabilities or to provide for the necessary teaching aids and transportation for children with disabilities. Decentralization and privatization of services are now means of economic reform. However, it should not be forgotten that it is the State Party’s ultimate responsibility to oversee that adequate funds are allocated to children with disabilities along with strict guidelines for service delivery. Resources allocated to children with disabilities should be sufficient --and earmarked so that they are not used for other purposes-- to cover all their needs, including programmes established for training professionals working with children with disabilities such as teachers, physiotherapists and policymakers; education campaigns; financial support for families; income maintenance; social security; assistive devices; and related services. Furthermore, funding must also be ensured for other programmes aimed at including children with disabilities into mainstream education, inter alia by renovating schools to render them physically accessible to children with disabilities.
E. COORDINATION BODY: “FOCAL POINT FOR DISABILITIES” 21. Services for children with disabilities are often delivered by various governmental and non-governmental institutions, and more often than not, these services are fragmented and not coordinated which result in overlapping of functions and gaps in provisions. Therefore, the setting up of an appropriate coordinating mechanism becomes essential. This body should be multisectoral, including all organizations public or private. It must be empowered and supported from the highest possible levels of Government to allow it to function at its full potential. A coordination body for children with disabilities, as part of a broader coordination system for the rights of the child or a national coordination system for persons with disabilities, would have the advantage of working within an already
established system, provided this system is functioning adequately and capable of devoting the adequate financial and human resources necessary. On the other hand, a separate coordination system may help to focus attention on children with disabilities.
F. INTERNATIONAL COOPERATION AND TECHNICAL ASSISTANCE 22. In order to make information among States parties freely accessible and to cultivate an atmosphere of knowledge-sharing concerning, inter alia, the management and rehabilitation of children with disabilities, States parties should recognize the importance of international cooperation and technical assistance. Particular attention should be paid to developing countries that need assistance in setting up and/or funding programmes that protect and promote the rights of children with disabilities. These countries are experiencing increasing difficulties in mobilizing the adequate resources to meet the pressing needs of persons with disabilities and would urgently need assistance in the prevention of disability, the provision of services and rehabilitation, and in the equalization of opportunities. However, in order to respond to these growing needs, the international community should explore new ways and means of raising funds, including substantial increase of resources, and take the necessary follow-up measures for mobilizing resources. Therefore, voluntary contributions from Governments, increased regional and bilateral assistance as well as contributions from private sources should also be encouraged. UNICEF and the World Health Organization (WHO) have been instrumental in helping developing countries set up and implement specific programmes for children with disabilities. The process of knowledge exchange is also valuable in sharing updated medical knowledge and good practices, such as early identification and community-based approaches to early intervention and support to families, and addressing common challenges. 23. Countries that have endured, or continue to endure, internal or foreign conflict, during which land mines were laid, face a particular challenge. States parties are often not privy to plans of the sites where the land mines and unexploded ordnance were planted and the cost of mine clearance is very high. The Committee emphasizes the importance of international cooperation in accordance with the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, in order to prevent injuries and deaths caused by landmines and unexploded ordnance that remain in place. In this regard the Committee recommends that States parties closely cooperate with a view to completely removing all landmines and unexploded ordnance in areas of armed conflict and/or previous armed conflict.
BI A CK N D E X
107
U PV EDR A TED SION
G. INDEPENDENT MONITORING 24. Both the Convention and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities recognize the importance of the establishment of an appropriate monitoring system3. The Committee has very often referred to “the Paris Principles” (A/RES/48/134) as the guidelines which national human rights institutions should follow (see the Committee’s general comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child). National human rights institutions can take many shapes or forms such as an Ombudsman or a Commissioner and may be broad-based or specific. Whatever mechanism is chosen, it must be: a) Independent and provided with adequate human and financial resources; b) Well known to children with disabilities and their caregivers; c) Accessible not only in the physical sense but also in a way that allows children with disabilities to send in their complaints or issues easily and confidentially; and d) It must have the appropriate legal authority to receive, investigate and address the complaints of children with disabilities in a manner sensitive to both their childhood and to their disabilities.
H. CIVIL SOCIETY 25. Although caring for children with disabilities is an obligation of the State, NGOs often carry out these responsibilities without the appropriate support, funding or recognition from Governments. States parties are therefore encouraged to support and cooperate with NGOs enabling them to participate in the provision of services for children with disabilities and to ensure that they operate in full compliance with the provisions and principles of the Convention. In this regard the Committee draws the attention of States parties to the recommendations adopted on its day of general discussion on the private sector as a service provider, held on 20 September 2002 (CRC/C/121, paras. 630-653).
I. DISSEMINATION OF KNOWLEDGE AND TRAINING OF PROFESSIONALS 26. Knowledge of the Convention and its specific provisions devoted to children with disabilities is a necessary and powerful tool to ensure the realization of these rights. States parties are encouraged to disseminate knowledge by, inter alia, conducting systematic awareness-raising campaigns, producing appropriate material, such as a child friendly version of the Convention in print and Braille, and using the mass media to foster positive attitudes towards children with disabilities. 27. As for professionals working with and for children with disabilities, training programmes must include targeted and focused education on the rights of children 3 See also the general comment No. 5 (1994) of the Committee on Economic, Social and Cultural Rights regarding persons with disabilities. 108
with disabilities as a prerequisite for qualification. These professionals include but are not limited to policymakers, judges, lawyers, law enforcement officers, educators, health workers, social workers and media staff among others.
GENERAL PRINCIPLES Article 2 Non-discrimination 28. See paragraphs 8-10 above. Article 3 Best interests of the child 29. “In all actions concerning children…the best interests of the child shall be a primary consideration”. The broad nature of this article aims at covering all aspects of care and protection for children in all settings. It addresses legislators who are entrusted with setting the legal framework for protecting the rights of children with disabilities as well as the decisions-making processes concerning children with disabilities. Article 3 should be the basis on which programmes and policies are set and it should be duly taken into account in every service provided for children with disabilities and any other action affecting them. 30. The best interests of the child is of particular relevance in institutions and other facilities that provide services for children with disabilities as they are expected to conform to standards and regulations and should have the safety, protection and care of children as their primary consideration, and this consideration should outweigh any other and under all circumstances, for example, when allocating budgets. Article 6 Right to life, survival and development 31. The inherent right to life, survival and development is a right that warrants particular attention where children with disabilities are concerned. In many countries of the world children with disabilities are subject to a variety of practices that completely or partially compromise this right. In addition to being more vulnerable to infanticide, some cultures view a child with any form of disability as a bad omen that may “tarnish the family pedigree” and, accordingly, a certain designated individual from the community systematically kills children with disabilities. These crimes often go unpunished or perpetrators receive reduced sentences. States parties are urged to undertake all the necessary measures required to put an end to these practices, including raising public awareness, setting up appropriate legislation and enforcing laws that ensure appropriate punishment to all those who directly or indirectly violate the right to life, survival and development of children with disabilities. Article 12 Respect for the views of the child 32. More often than not, adults with and without disabilities make policies and decisions related to children with disabilities while the children themselves are left out of the process. It is essential that children with disabilities be heard in all procedures affecting them and that their views be respected in accordance with their evolving
BACK
KEYWORDS INDEX
U PV EDR A TED SION capacities. In order for this principle to be respected, children should be represented in various bodies such as parliament, committees and other forums where they may voice views and participate in the making of decisions that affect them as children in general and as children with disabilities specifically. Engaging children in such a process not only ensures that the policies are targeted to their needs and desires, but also functions as a valuable tool for inclusion since it ensures that the decision-making process is a participatory one. Children should be provided with whatever mode of communication they need to facilitate expressing their views. Furthermore, States parties should support the training for families and professionals on promoting and respecting the evolving capacities of children to take increasing responsibilities for decisionmaking in their own lives. 33. 33. Children with disabilities often require special services in health and education to allow them to achieve their fullest potential and these are further discussed in the relevant paragraphs below. However it should be noted that spiritual, emotional and cultural development and wellbeing of children with disabilities are very often overlooked. Their participation in events and activities catering to these essential aspects of any child’s life is either totally lacking or minimal. Furthermore, when their participation is invited, it is often limited to activities specifically designed for and targeted at children with disabilities. This practice only leads to further marginalization of children with disabilities and increases their feelings of isolation. Programmes and activities designed for the child’s cultural development and spiritual well-being should involve and cater to both children with and without disabilities in an integrated and participatory fashion.
CIVIL RIGHTS AND FREEDOMS CIVILES
34. The right to name and nationality, preservation of identity, freedom of expression, freedom of thought, conscience and religion, freedom of association and peaceful assembly, the right to privacy and the right not to be subjected to torture or other cruel inhuman or degrading treatment or punishment and not to be unlawfully deprived of liberty are all universal civil rights and freedoms which must be respected, protected and promoted for all, including children with disabilities. Particular attention should be paid here on areas where the rights of children with disabilities are more likely to be violated or where special programmes are needed for their protection.
A. BIRTH REGISTRATION 35. Children with disabilities are disproportionately vulnerable to non-registration at birth. Without birth registration they are not recognized by law and become invisible in government statistics. Non-registration has profound consequences for the enjoyment of their human rights, including the lack of citizenship and access to social and health services and to education. Children with disabilities who are not registered at birth are at greater risk of neglect, institutionalization, and even death.
36. In the light of article 7 of the Convention, the Committee recommends that States parties adopt all appropriate measures to ensure the registration of children with disabilities at birth. Such measures should include developing and implementing an effective system of birth registration, waiving registration fees, introducing mobile registration offices and, for children who are not yet registered, providing registration units in schools. In this context, States parties should ensure that the provisions of article 7 are fully enforced in conformity with the principles of non-discrimination (art. 2) and of the best interests of the child (art. 3).
B. ACCESS TO APPROPRIATE INFORMATION AND MASS MEDIA 37. Access to information and means of communication, including information and communication technologies and systems, enables children with disabilities to live independently and participate fully in all aspects of life. Children with disabilities and their caregivers should have access to information concerning their disabilities so that they can be adequately educated on the disability, including its causes, management and prognosis. This knowledge is extremely valuable as it does not only enable them to adjust and live better with their disabilities, but also allows them to be more involved in and to make informed decisions about their own care. Children with disabilities should also be provided with the appropriate technology and other services and/or languages, e.g. Braille and sign language, which would enable them to have access to all forms of media, including television, radio and printed material as well as new information and communication technologies and systems, such as the Internet. 38. On the other hand, States parties are required to protect all children, including children with disabilities from harmful information, especially pornographic material and material that promotes xenophobia or any other form of discrimination and could potentially reinforce prejudices.
C. ACCESSIBILITY TO PUBLIC TRANSPORTATION AND FACILITIES 39. The physical inaccessibility of public transportation and other facilities, including governmental buildings, shopping areas, recreational facilities among others, is a major factor in the marginalization and exclusion of children with disabilities and markedly compromises their access to services, including health and education. Although this provision may be mostly realized in developed countries, it remains largely un-addressed in the developing world. All States parties are urged to set out appropriate policies and procedures to make public transportation safe, easily accessible to children with disabilities, and free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child. 40. All new public buildings should comply with international specifications for access of persons with disabilities and existing public buildings, including schools, health facilities, governmental buildings, shopping areas, undergo necessary alterations that make them as
BI A CK N D E X
109
U PV EDR A TED SION accessible as possible.
FAMILY ENVIRONMENT AND ALTERNATIVE CARE (ARTS. 5, 18 (1-2), 9-11, 19-21, 25, 27 (4), AND 39)
A. FAMILY SUPPORT AND PARENTAL RESPONSIBILITIES 41. Children with disabilities are best cared for and nurtured within their own family environment provided that the family is adequately provided for in all aspects. Such support to families includes education of parent/s and siblings, not only on the disability and its causes but also on each child’s unique physical and mental requirements; psychological support that is sensitive to the stress and difficulties imposed on families of children with disabilities; education on the family’s common language, for example sign language, so that parents and siblings can communicate with family members with disabilities; material support in the form of special allowances as well as consumable supplies and necessary equipment, such as special furniture and mobility devices that is deemed necessary for the child with a disability to live a dignified, self-reliant lifestyle, and be fully included in the family and community. In this context, support should also be extended to children who are affected by the disabilities of their caregivers. For example, a child living with a parent or other caregiver with disabilities should receive the support that would protect fully his or her rights and allow him or her to continue to live with this parent whenever it is in his or her best interests. Support services should also include different forms of respite care, such as care assistance in the home and day-care facilities directly accessible at community level. Such services enable parents to work, as well as relieve stress and maintain healthy family environments.
B. VIOLENCE, ABUSE AND NEGLECT 42. Children with disabilities are more vulnerable to all forms of abuse be it mental, physical or sexual in all settings, including the family, schools, private and public institutions, inter alia alternative care, work environment and community at large. It is often quoted that children with disabilities are five times more likely to be victims of abuse. In the home and in institutions, children with disabilities are often subjected to mental and physical violence and sexual abuse, and they are also particularly vulnerable to neglect and negligent treatment since they often present an extra physical and financial burden on the family. In addition, the lack of access to a functional complaint receiving and monitoring mechanism is conducive to systematic and continuing abuse. School bullying is a particular form of violence that children are exposed to and more often than not, this form of abuse targets children with disabilities. Their particular vulnerability may be explained inter alia by the following main reasons: a) Their inability to hear, move, and dress, toilet, and bath independently increases their vulnerability to intrusive personal care or abuse; 110
b) Living in isolation from parents, siblings, extended family and friends increases the likelihood of abuse; c) Should they have communication or intellectual impairments, they may be ignored, disbelieved or misunderstood should they complain about abuse; d) Parents or others taking care of the child may be under considerable pressure or stress because of physical, financial and emotional issues in caring for their child. Studies indicate that those under stress may be more likely to commit abuse; e) Children with disabilities are often wrongly perceived as being non-sexual and not having an understanding of their own bodies and, therefore, they can be targets of abusive people, particularly those who base abuse on sexuality. 43. In addressing the issue of violence and abuse, States parties are urged to take all necessary measures for the prevention of abuse of and violence against children with disabilities, such as: a) Train and educate parents or others caring for the child to understand the risks and detect the signs of abuse of the child; b) Ensure that parents are vigilant about choosing caregivers and facilities for their children and improve their ability to detect abuse; c) Provide and encourage support groups for parents, siblings and others taking care of the child to assist them in caring for their children and coping with their disabilities; d) Ensure that children and caregivers know that the child is entitled as a matter of right to be treated with dignity and respect and they have the right to complain to appropriate authorities if those rights are breached; e) Ensure that schools take all measures to combat school bullying and pay particular attention to children with disabilities providing them with the necessary protection while maintaining their inclusion into the mainstream education system; f) Ensure that institutions providing care for children with disabilities are staffed with specially trained personnel, subject to appropriate standards, regularly monitored and evaluated, and have accessible and sensitive complaint mechanisms; g) Establish an accessible, child-sensitive complaint mechanism and a functioning monitoring system based on the Paris Principles (see paragraph 24 above); h) Take all necessary legislative measures required to punish and remove perpetrators from the home ensuring that the child is not deprived of his or her family and continue to live in a safe and healthy environment; i) Ensure the treatment and re-integration of victims of abuse and violence with a special focus on their overall recovery programmes. 44. In this context the Committee would also like to draw States parties’ attention to the report of the independent expert for the United Nations study on violence against children (A/61/299) which refers to children with disabilities as a group of children especially vulnerable to
BACK
KEYWORDS INDEX
U PV EDR A TED SION violence. The Committee encourages States parties to take all appropriate measures to implement the overarching recommendations and setting-specific recommendations contained in this report.
C. F A M I L Y - T Y P E A L T E R N A T I V E CARE 45. The role of the extended family, which is still a main pillar of childcare in many communities and is considered one of the best alternatives for childcare, should be strengthened and empowered to support the child and his or her parents or others taking care of the child. 46. Recognizing that the foster family is an accepted and practiced form of alternative care in many States parties, it is nevertheless a fact that many foster families are reluctant to take on the care of a child with disability as children with disabilities often pose a challenge in the extra care they may need and the special requirements in their physical, psychological and mental upbringing. Organizations that are responsible for foster placement of children must, therefore, conduct the necessary training and encouragement of suitable families and provide the support that will allow the foster family to appropriately take care of the child with disability.
D. INSTITUTIONS
of children with disabilities and facilitate their participation in all matters affecting them within the evaluation, separation and placement process in out-of-home care, and during the transition process. The Committee also emphasizes that children should be heard throughout the protection measure process, before making the decision as well as during and after its implementation. In this context, the Committee draws the attention of the States parties to the Committee’s recommendations adopted on its day of general discussion on children without parental care, held on 16 September 2005 (CRC/C/153, paragraphs 636-689). 49. In addressing institutionalization, States parties are therefore urged to set up programmes for deinstitutionalization of children with disabilities, re-placing them with their families, extended families or foster care system. Parents and other extended family members should be provided with the necessary and systematic support/training for including their child back into their home environment.
E. PERIODIC REVIEW OF PLACEMENT 50. Whatever form of placement chosen for children with disabilities by the competent authorities, it is essential that a periodic review of the treatment provided to the child, and all other circumstances relevant to his or her placement, is carried out to monitor his or her well being.
47. The Committee has often expressed its concern at the high number of children with disabilities placed in institutions and that institutionalization is the preferred placement option in many countries. The quality of care provided, whether educational, medical or rehabilitative, is often much inferior to the standards necessary for the care of children with disabilities either because of lack of identified standards or lack of implementation and monitoring of these standards. Institutions are also a particular setting where children with disabilities are more vulnerable to mental, physical, sexual and other forms of abuse as well as neglect and negligent treatment (see paragraphs 42-44 above). The Committee therefore urges States parties to use the placement in institution only as a measure of last resort, when it is absolutely necessary and in the best interests of the child. It recommends that the States parties prevent the use of placement in institution merely with the goal of limiting the child’s liberty or freedom of movement. In addition, attention should be paid to transforming existing institutions, with a focus on small residential care facilities organized around the rights and needs of the child, to developing national standards for care in institutions, and to establishing rigorous screening and monitoring procedures to ensure effective implementation of these standards. 48. The Committee is concerned at the fact that children with disabilities are not often heard in separation and placement processes. In general, decision-making processes do not attach enough weight to children as partners even though these decisions have a far-reaching impact on the child’s life and future. Therefore, the Committee recommends that States parties continue and strengthen their efforts to take into consideration the views
BI A CK N D E X
111
U PV EDR A TED SION
BASIC HEALTH
AND WELFARE (ARTS. 6, 18 (3), 23, 24, 26, AND 27 (1-3))
A. RIGHT TO HEALTH 51. Attainment of the highest possible standard of health as well as access and affordability of quality healthcare is an inherent right for all children. Children with disabilities are often left out because of several challenges, including discrimination, inaccessibility due to the lack of information and/or financial resources, transportation, geographic distribution and physical access to health care facilities. Another factor is the absence of targeted health care programmes that address the specific needs of children with disabilities. Health policies should be comprehensive and address early detection of disabilities, early intervention, including psychological and physical treatment, rehabilitation including physical aids, for example limb prosthesis, mobility devices, hearing aids and visual aids. 52. It is important to emphasize that health services should be provided within the same public health system that provides for children with no disabilities, free of charge, whenever possible, and as updated and modernized as possible. The importance of community-based assistance and rehabilitation strategies should be emphasized when providing health services for children with disabilities. States parties must ensure that health professionals working with children with disabilities are trained to the highest possible standard and practice based on a childcentred approach. In this respect, many States parties would greatly benefit from international cooperation with international organizations as well as other States parties.
B. PREVENTION 53. Causes of disabilities are multiple and, therefore, the quality and level of prevention vary. Inherited diseases that often cause disabilities can be prevented in some societies that practice consanguineous marriages and under such circumstances public awareness and appropriate preconception testing would be recommended. Communicable diseases are still the cause of many disabilities around the world and immunization programmes need to be stepped up aiming to achieve universal immunization against all preventable communicable diseases. Poor nutrition has a long-term impact upon children’s development and it can lead to disabilities, such as blindness caused by Vitamin A deficiency. The Committee recommends that States parties introduce and strengthen prenatal care for children and ensure adequate quality of the assistance given during the delivery. It also recommends that States parties provide adequate post-natal health-care services and develop campaigns to inform parents and others caring for the child about basic child healthcare and nutrition. In this regard, the Committee also recommends that the States parties continue to cooperate and seek technical assistance with, among others, WHO and UNICEF. 54. 54. Domestic and road traffic accidents are a major cause of disability in some countries and policies of 112
prevention need to be established and implemented such as the laws on seat belts and traffic safety. Lifestyle issues, such as alcohol and drug abuse during pregnancy, are also preventable causes of disabilities and in some countries the fetal alcohol syndrome presents a major cause for concern. Public education, identification and support for pregnant mothers who may be abusing such substances are just some of the measures that may be taken to prevent such causes of disability among children. Hazardous environment toxins also contribute to the causes of many disabilities. Toxins, such as lead, mercury, asbestos, etc., are commonly found in most countries. Countries should establish and implement policies to prevent dumping of hazardous materials and other means of polluting the environment. Furthermore, strict guidelines and safeguards should also be established to prevent radiation accidents. 55. Armed conflicts and their aftermath, including availability and accessibility of small arms and light weapons, are also major causes of disabilities. States parties are obliged to take all necessary measures to protect children from the detrimental effects of war and armed violence and to ensure that children affected by armed conflict have access to adequate health and social services, including psychosocial recovery and social reintegration. In particular, the Committee stresses the importance of educating children, parents and the public at large about the dangers of landmines and unexploded ordnance in order to prevent injury and death. It is crucial that States parties continue to locate landmines and unexploded ordnance, take measures to keep children away from suspected areas, and strengthen their mine clearance activities and, when appropriate, seek the necessary technical and financial support within a framework of international cooperation, including from United Nations agencies. (See also paragraph 23 above on landmines and unexploded ordnance and paragraph 78 below on armed conflicts under special protection measures).
C. EARLY IDENTIFICATION 56. Very often, disabilities are detected quite late in the child’s life, which deprives him or her of effective treatment and rehabilitation. Early identification requires high awareness among health professionals, parents, teachers as well as other professionals working with children. They should be able to identify the earliest signs of disability and make the appropriate referrals for diagnosis and management. Therefore, the Committee recommends that States parties establish systems of early identification and early intervention as part of their health services, together with birth registration and procedures for following the progress of children identified with disabilities at an early age. Services should be both community- and homebased, and easy to access. Furthermore, links should be established between early intervention services, preschools and schools to facilitate the smooth transition of the child. 57. Following identification, the systems in place must be capable of early intervention including treatment and rehabilitation providing all necessary devices that enable children with disabilities to achieve their full functional capacity in terms of mobility, hearing aids, visual aids, and
BACK
KEYWORDS INDEX
U PV EDR A TED SION prosthetics among others. It should also be emphasized that these provisions should be offered free of cost, whenever possible, and the process of acquiring such services should be efficient and simple avoiding long waits and bureaucracies.
D. MULTIDISCIPLINARY CARE 58. Children with disabilities very often have multiple health issues that need to be addressed in a team approach. Very often, many professionals are involved in the care of the child, such as neurologists, psychologists, psychiatrists, orthopaedic surgeons and physiotherapists among others. Ideally these professionals should collectively identify a plan of management for the child with disability that would ensure the most efficient healthcare is provided.
E. ADOLESCENT HEALTH AND DEVELOPMENT 59. The Committee notes that children with disabilities are, particularly during their adolescence, facing multiple challenges and risks in the area of establishing relationships with peers and reproductive health. Therefore, the Committee recommends that States parties provide adolescents with disabilities with adequate, and where appropriate, disability specific information, guidance and counselling and fully take into account the Committee’s general comments No. 3 (2003) on HIV/AIDS and the rights of the child and No. 4 (2003) on adolescent health and development in the context of the Convention on the Rights of the Child. 60. The Committee is deeply concerned about the prevailing practice of forced sterilisation of children with disabilities, particularly girls with disabilities. This practice, which still exists, seriously violates the right of the child to her or his physical integrity and results in adverse lifelong physical and mental health effects. Therefore, the Committee urges States parties to prohibit by law the forced sterilisation of children on grounds of disability.
F. RESEARCH 61. Causes, prevention and management of disabilities do not receive the much needed attention on national and international research agendas. States parties are encouraged to award this issue priority status ensuring funding and monitoring of disability focused research paying particular attention to ethical implications.
EDUCATION AND LEISURE (ARTS. 28, 29 AND 31)
A. QUALITY EDUCATION 62. 62. Children with disabilities have the same right to education as all other children and shall enjoy this right without any discrimination and on the basis of equal opportunity as stipulated in the Convention4. For this purpose, effective access of children with disabilities to education has to be ensured to promote “the development of the child’s personality, talents and mental and physical abilities to their fullest potential (see articles 28 and 29 of the Convention and the Committee’s general comment No. 1 (2001) on the aims of education). The Convention recognizes the need for modification to school practices and for training of regular teachers to prepare them to teach children with diverse abilities and ensure that they achieve positive educational outcomes. 63. As children with disabilities are very different from each other, parents, teachers and other specialized professionals have to help each individual child to develop his or her ways and skills of communication, language, interaction, orientation and problem-solving which best fit the potential of this child. Everybody, who furthers the child’s skills, abilities and self-development, has to precisely observe the child’s progress and carefully listen to the child’s verbal and emotional communication in order to support education and development in a well-targeted and most appropriate manner.
B. SELF-ESTEEM AND SELF-RELIANCE 64. It is crucial that the education of a child with disability includes the strengthening of positive self-awareness, making sure that the child feels he or she is respected by others as a human being without any limitation of dignity. The child must be able to observe that others respect him or her and recognize his or her human rights and freedoms. Inclusion of the child with disability in the groups of children of the classroom can show the child that he or she has recognized identity and belongs to the community of learners, peers, and citizens. Peer support enhancing self-esteem of children with disabilities should be more widely recognized and promoted. Education also has to provide the child with empowering experience of control, achievement, and success to the maximum extent possible for the child.
4 In this context the Committee would like to make a reference to the United Nations Millennium Declaration (A/RES/55/2) and in particular to the Millennium Development Goal No. 2 relating to universal primary education according to which Governments are committed to “ensure that, by 2015, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling and that girls and boys will have equal access to all levels of education”. The Committee would also like to refer to other international commitments which endorse the idea of inclusive education, inter alia, the Salamanca Statement and Framework for Action on Special Needs Education adopted by the World Conference on Special Needs Education: Access and Quality, Salamanca, Spain, 7-10 June 1994 (UNESCO and Ministry of Education and Science of Spain) and the Dakar Framework for Action, Education for All: Meeting our Collective Commitments, adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000.
BI A CK N D E X
113
U PV EDR A TED SION
C. EDUCATION IN THE SCHOOL SYSTEM 65. Early childhood education is of particular relevance for children with disabilities as often their disabilities and special needs are first recognized in these institutions. Early intervention is of utmost importance to help children to develop their full potential. If a child is identified as having a disability or developmental delay at an early stage, the child has much better opportunities to benefit from early childhood education which should be designed to respond to her or his individual needs. Early childhood education provided by the State, the community or civil society institutions can provide important assistance to the well-being and development of all children with disabilities (see the Committee’s general comment No. 7 (2005) on implementing child rights in early childhood). Primary education, including primary school and, in many States parties, also secondary school, has to be provided for children with disabilities free of costs. All schools should be without communicational barriers as well as physical barriers impeding the access of children with reduced mobility. Also higher education, accessible on the basis of capacities, has to be accessible for qualified adolescents with disabilities. In order to fully exercise their right to education, many children need personal assistance, in particular, teachers trained in methodology and techniques, including appropriate languages, and other forms of communication, for teaching children with a diverse range of abilities capable of using child-centred and individualised teaching strategies, and appropriate and accessible teaching materials, equipment and assistive devices, which States parties should provide to the maximum extent of available resources.
D. INCLUSIVE EDUCATION 66. Inclusive education5 should be the goal of educating children with disabilities. The manner and form of inclusion must be dictated by the individual educational needs of the child, since the education of some children with disabilities requires a kind of support which may not be readily available in the regular school system. The Committee notes the explicit commitment towards the goal of inclusive education contained in the draft convention on the rights of persons with disabilities and the obligation for States to ensure that persons including children with disabilities are not excluded from the general education system on the basis of disability and that they receive the support required, within the general education system, to facilitate their effective education. It encourages States parties which have not yet begun a programme towards inclusion to introduce the necessary measures to achieve this goal. However, the Committee underlines that the extent of inclusion within the general education system may vary. A continuum of services and programme options must be maintained in circumstances where fully inclusive 5 UNESCO’s Guidelines for Inclusion: Ensuring Access to Education for All (UNESCO 2005) provides the following definition “Inclusion is seen as a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education. It involves changes and modifications in content, approaches, structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children…Inclusion is concerned with the identification and removal of barriers…” (p. 13 and 15) 114
education is not feasible to achieve in the immediate future. 67. The movement towards inclusive education has received much support in recent years. However, the term inclusive may have different meanings. At its core, inclusive education is a set of values, principles and practices that seeks meaningful, effective, and quality education for all students, that does justice to the diversity of learning conditions and requirements not only of children with disabilities, but for all students. This goal can be achieved by different organizational means which respect the diversity of children. Inclusion may range from full-time placement of all students with disabilities into one regular classroom or placement into the regular class room with varying degree of inclusion, including a certain portion of special education. It is important to understand that inclusion should not be understood nor practiced as simply integrating children with disabilities into the regular system regardless of their challenges and needs. Close cooperation among special educators and regular educators is essential. Schools’ curricula must be re-evaluated and developed to meet the needs of children with and without disabilities. Modification in training programmes for teachers and other personnel involved in the educational system must be achieved in order to fully implement the philosophy of inclusive education.
E. CAREER EDUCATION AND VOCATIONAL TRAINING 68. Education for career development and transition is for all persons with disabilities regardless of their age. It is imperative to begin preparation at an early age because career development is seen as a process that begins early and continues throughout life. Developing career awareness and vocational skills as early as possible, beginning in the elementary school, enables children to make better choices later in life in terms of employment. Career education in the elementary school does not mean using young children to perform labour that ultimately opens the door for economic exploitation. It begins with students choosing goals according to their evolving capacities in the early years. It should then be followed by a functional secondary school curriculum that offers adequate skills and access to work experience, under systematic coordination and monitoring between the school and the work place. 69. Career development and vocational skills should be included in the school curriculum. Career awareness and vocational skills should be incorporated into the years of compulsory education. In countries where compulsory education does not go beyond the elementary school years, vocational training beyond elementary school should be mandatory for children with disabilities. Governments must establish policies and allocate sufficient funds for vocational training.
BACK
KEYWORDS INDEX
U PV EDR A TED SION – that the following elements of the treatment of children with disabilities (allegedly) in conflict with the law be taken into account:
F. RECREATION AND CULTURAL ACTIVITIES 70. The Convention stipulates in article 31 the right of the child to recreation and cultural activities appropriate to the age of the child. This article should be interpreted to include mental, psychological as well as the physical ages and capabilities of the child. Play has been recognized as the best source of learning various skills, including social skills. The attainment of full inclusion of children with disabilities in the society is realized when children are given the opportunity, places, and time to play with each other (children with disabilities and no disabilities). Training for recreation, leisure and play should be included for schoolaged children with disabilities. 71. Children with disabilities should be provided with equal opportunities to participate in various cultural and arts activities as well as sports. These activities must be viewed as both medium of expression and medium of realizing self-satisfying, quality of life.
G. SPORTS 72. Competitive and non-competitive sports activities must be designed to include children with disabilities in an inclusive manner, whenever possible. That is to say, a child with a disability who is able to compete with children with no disability should be encouraged and supported to do so. But sports are an area where, because of the physical demands of the sport, children with disabilities will often need to have exclusive games and activities where they can compete fairly and safely. It must be emphasized though that when such exclusive events take place, the media must play its role responsibly by giving the same attention as it does to sports for children with no disabilities.
SPECIAL PROTECTION MEASURES (ARTS. 22, 38, 39, 40, 37 B-D, AND 32-36)
A. JUVENILE JUSTICE SYSTEM 73. In the light of article 2 States parties have the obligation to ensure that children with disabilities who are in conflict with the law (as described in article 40, paragraph 1) will be protected not only by the provisions of the Convention which specifically relate to juvenile justice (arts. 40, 37 and 39) but by all other relevant provisions and guarantees contained in the Convention, for example in the area of health care and education. In addition, States parties should take where necessary specific measures to ensure that children with disabilities de facto are protected by and do benefit from the rights mentioned above. 74. With reference to the rights enshrined in article 23 and given the high level of vulnerability of children with disabilities, the Committee recommends – in addition to the general recommendation made in paragraph 73 above
a) A child with disability who comes in conflict with the law should be interviewed using appropriate languages and otherwise dealt with by professionals such as police officers, attorneys/advocates/social workers, prosecutors and/or judges, who have received proper training in this regard; b) Governments should develop and implement alternative measures with a variety and a flexibility that allow for an adjustment of the measure to the individual capacities and abilities of the child in order to avoid the use of judicial proceedings. Children with disabilities in conflict with the law should be dealt with as much as possible without resorting to formal/legal procedures. Such procedures should only be considered when necessary in the interest of public order. In those cases special efforts have to be made to inform the child about the juvenile justice procedure and his or her rights therein; c) Children with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment. Deprivation of liberty should only be applied if necessary with a view to providing the child with adequate treatment for addressing his or her problems which have resulted in the commission of a crime and the child should be placed in an institution that has the specially trained staff and other facilities to provide this specific treatment. In making such decisions the competent authority should make sure that the human rights and legal safeguards are fully respected.
B. ECONOMIC EXPLOITATION 75. Children with disabilities are particularly vulnerable to different forms of economic exploitation, including the worst forms of child labour as well as drug trafficking and begging. In this context, the Committee recommends that States parties which have not yet done so ratify the Convention No. 138 of the International Labour Organization (ILO) concerning the minimum age for admission to employment and ILO Convention No. 182 concerning the prohibition of and immediate action for the elimination of the worst forms of child labour. In the implementation of these conventions States parties should pay special attention to the vulnerability and needs of children with disabilities.
C. STREET CHILDREN 76. Children with disabilities, specifically physical disabilities, often end up on the streets for a variety of reasons, including economic and social factors. Children with disabilities living and/or working on the streets need to be provided with adequate care, including nutrition, clothing, housing, educational opportunities, life-skills training as well as protection from the different dangers including economic and sexual exploitation. In this regard an individualized approach is necessary which takes full account of the special needs and the capacities of the child. The Committee is particularly concerned that children with
BI A CK N D E X
115
U PV EDR A TED SION disabilities are sometimes exploited for the purpose of begging in the streets or elsewhere; sometimes disabilities are inflicted on children for the purpose of begging. States parties are required to take all necessary actions to prevent this form of exploitation and to explicitly criminalize exploitation in such manner and take effective measures to bring the perpetrators to justice.
D. SEXUAL EXPLOITATION 77. 77. The Committee has often expressed grave concern at the growing number of child victims of child prostitution and child pornography. Children with disabilities are more likely than others to become victims of these serious crimes. Governments are urged to ratify and implement the Optional Protocol on the sale of children, child prostitution and child pornography (OPSC) and, in fulfilling their obligations to the Optional Protocol, States parties should pay particular attention to the protection of children with disabilities recognizing their particular vulnerability.
E. CHILDREN IN ARMED CONFLICT 78. As previously noted above, armed conflicts are a major cause of disabilities whether children are actually involved in the conflict or are victims of combat. In this context, Governments are urged to ratify and implement the Optional Protocol on the involvement of children in armed conflict (OPAC). Special attention should be paid to the recovery and social re-integration of children who suffer disabilities as a result of armed conflicts. Furthermore, the Committee recommends that States parties explicitly exclude children with disabilities from recruitment in armed forces and take the necessary legislative and other measures to fully implement that prohibition.
116
F. REFUGEE AND INTERNALLY DISPLACED CHILDREN, CHILDREN BELONGING TO MINORITIES AND INDIGENOUS CHILDREN 79. Certain disabilities result directly from the conditions that have led some individuals to become refugees or internally displaced persons, such as human-caused or natural disasters. For example, landmines and unexploded ordnance kill and injure refugee, internally displaced and resident children long after armed conflicts have ceased. Refugee and internally displaced children with disabilities are vulnerable to multiple forms of discrimination, particularly refugee and internally displaced girls with disabilities, who are more often than boys subject to abuse, including sexual abuse, neglect and exploitation. The Committee strongly emphasizes that refugee and internally displaced children with disabilities should be given high priority for special assistance, including preventative assistance, access to adequate health and social services, including psychosocial recovery and social reintegration. The Office of the United Nations High Commissioner for Refugees (UNHCR) has made children a policy priority and adopted several documents to guide its work in that area, including the Guidelines on Refugee Children in 1988, which are incorporated into UNHCR Policy on Refugee Children. The Committee also recommends that States parties take into account the Committee’s general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside of their country of origin. 80. 80. All appropriate and necessary measures undertaken to protect and promote the rights of children with disabilities must include and pay special attention to the particular vulnerability and needs of children belonging to minorities and indigenous children who are more likely to be already marginalized within their communities. Programmes and policies must always be culturally and ethnically sensitive.
BACK
KEYWORDS INDEX
Number 10
IN T R O DUC T I ON
THE O BJECTIVES
OF THE PRESENT GENERAL COMMENT 1. In the reports they submit to the Committee on the Rights of the Child (hereafter: the Committee), States parties often pay quite detailed attention to the rights of children alleged as, accused of, or recognized as having infringed the penal law, also referred to as “children in conflict with the law”. In line with the Committee’s guidelines for periodic reporting, the implementation of articles 37 and 40 of the Convention on the Rights of the Child (hereafter: CRC) is the main focus of the information provided by the States parties. The Committee notes with appreciation the many efforts to establish an administration of juvenile justice in compliance with CRC. However, it is also clear that many States parties still have a long way to go in achieving full compliance with CRC, e.g. in the areas of procedural rights, the development and implementation of measures for dealing with children in conflict with the law without resorting to judicial proceedings, and the use of deprivation of liberty only as a measure of last resort. 2. The Committee is equally concerned about the lack of information on the measures that States parties have taken to prevent children from coming into conflict with the law. This may be the result of a lack of a comprehensive policy for the field of juvenile justice. This may also explain why many States parties are providing only very limited statistical data on the treatment of children in conflict with the law. 3. The experience in reviewing the States parties’ performance in the field of juvenile justice is the reason for the present general comment, by which the Committee wants to provide the States parties with more elaborated guidance and recommendations for their efforts to establish an administration of juvenile justice in compliance with CRC. This juvenile justice, which should promote, inter alia, the use of alternative measures such as diversion and restorative justice, will provide States parties with possibilities to respond to children in conflict with the law in an effective manner serving not only the best interests of these children, but also the short and long-term interest of the society at large.
4. At the outset, the Committee wishes to underscore that CRC requires States parties to develop and implement a comprehensive juvenile justice policy. This comprehensive approach should not be limited to the implementation of the specific provisions contained in articles 37 and 40 of CRC, but should also take into account the general principles enshrined in articles 2, 3, 6 and 12, and in all other relevant articles of CRC, such as articles 4 and 39. Therefore, the objectives of this general comment are: - To encourage States parties to develop and implement a comprehensive juvenile justice policy to prevent and address juvenile delinquency based on and in compliance with CRC, and to seek in this regard advice and support from the Interagency Panel on Juvenile Justice, with representatives of the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations Children’s Fund (UNICEF), the United Nations Office on Drugs and Crime (UNODC) and non-governmental organizations (NGO’s), established by ECOSOC resolution 1997/30; - To provide States parties with guidance and recommendations for the content of this comprehensive juvenile justice policy, with special attention to prevention of juvenile delinquency, the introduction of alternative measures allowing for responses to juvenile delinquency without resorting to judicial procedures, and for the interpretation and implementation of all other provisions contained in articles 37 and 40 of CRC; - To promote the integration, in a national and comprehensive juvenile justice policy, of other international standards, in particular, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the “Havana Rules”), and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the “Riyadh Guidelines”).
U PV EDR A TED SION
JUV ENI LE J UST I CE:
BEST INTERESTS OF THE CHILD (ART. 3)
THE LEADING PRINCIPLES OF A COMPREHENSIVE POLICY
5. Before elaborating on the requirements of CRC in more detail, the Committee will first mention the leading principles of a comprehensive policy for juvenile justice. In the administration of juvenile justice, States parties have to apply systematically the general principles contained in articles 2, 3, 6 and 12 of CRC, as well as the fundamental principles of juvenile justice enshrined in articles 37 and 40.
NON-DISCRIMINATION (ART. 2) 6. States parties have to take all necessary measures to ensure that all children in conflict with the law are treated equally. Particular attention must be paid to de facto discrimination and disparities, which may be the result of a lack of a consistent policy and involve vulnerable groups of children, such as street children, children belonging to racial, ethnic, religious or linguistic minorities, indigenous children, girl children, children with disabilities and children who are repeatedly in conflict with the law (recidivists). In this regard, training of all professionals involved in the administration of juvenile justice is important (see paragraph 97 below), as well as the establishment of rules, regulations or protocols which enhance equal treatment of child offenders and provide redress, remedies and compensation. 7. Many children in conflict with the law are also victims of discrimination, e.g. when they try to get access to education or to the labour market. It is necessary that measures are taken to prevent such discrimination, inter alia, as by providing former child offenders with appropriate support and assistance in their efforts to reintegrate in society, and to conduct public campaigns emphasizing their right to assume a constructive role in society (art. 40 (1)). 8. It is quite common that criminal codes contain provisions criminalizing behavioural problems of children, such as vagrancy, truancy, runaways and other acts, which often are the result of psychological or socioeconomic problems. It is particularly a matter of concern that girls and street children are often victims of this criminalization. These acts, also known as Status Offences, are not considered to be such if committed by adults. The Committee recommends that the States parties abolish the provisions on status offences in order to establish an equal treatment under the law for children and adults. In this regard, the Committee also refers to article 56 of the Riyadh Guidelines which reads: “In order to prevent further stigmatization, victimization and criminalization of young persons, legislation should be enacted to ensure that any conduct not considered an offence or not penalized if committed by an adult is not considered an offence and not penalized if committed by a young person.” 9. In addition, behaviour such as vagrancy, roaming the streets or runaways should be dealt with through the implementation of child protective measures, including effective support for parents and/or other caregivers and measures which address the root causes of this behaviour.
10. In all decisions taken within the context of the administration of juvenile justice, the best interests of the child should be a primary consideration. Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children. The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/ retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.
THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT (ART. 6) 11. This inherent right of every child should guide and inspire States parties in the development of effective national policies and programmes for the prevention of juvenile delinquency, because it goes without saying that delinquency has a very negative impact on the child’s development. Furthermore, this basic right should result in a policy of responding to juvenile delinquency in ways that support the child’s development. The death penalty and a life sentence without parole are explicitly prohibited under article 37 (a) of CRC (see paragraphs 75 77 below). The use of deprivation of liberty has very negative consequences for the child’s harmonious development and seriously hampers his/her reintegration in society. In this regard, article 37 (b) explicitly provides that deprivation of liberty, including arrest, detention and imprisonment, should be used only as a measure of last resort and for the shortest appropriate period of time, so that the child’s right to development is fully respected and ensured (see paragraphs 78-88 below).1
THE RIGHT TO BE HEARD (ART. 12) 12. The right of the child to express his/her views freely in all matters affecting the child should be fully respected and implemented throughout every stage of the process of juvenile justice (see paragraphs 43-45 below). The Committee notes that the voices of children involved in the juvenile justice system are increasingly becoming a powerful force for improvements and reform, and for the fulfilment of their rights.
DIGNITY (ART. 40 (1)) 13. CRC provides a set of fundamental principles for the treatment to be accorded to children in conflict with the law:
- Treatment that is consistent with the child’s sense of dignity and worth. This principle reflects the fundamental 1 Note that the rights of a child deprived of his/her liberty, as recognized in CRC, apply with respect to children in conflict with the law, and to children placed in institutions for the purposes of care, protection or treatment, including mental health, educational, drug treatment, child protection or immigration institutions.
BI A CK N D E X
121
U PV EDR A TED SION
JUVENILE JUSTICE:
THE CORE ELEMENTS OF A COMPREHENSIVE human right enshrined in article 1 of UDHR, which POLICY stipulates that all human beings are born free and equal in dignity and rights. This inherent right to dignity and worth, to which the preamble of CRC makes explicit reference, has to be respected and protected throughout the entire process of dealing with the child, from the first contact with law enforcement agencies and all the way to the implementation of all measures for dealing with the child;
- Treatment that reinforces the child’s respect for the human rights and freedoms of others. This principle is in line with the consideration in the preamble that a child should be brought up in the spirit of the ideals proclaimed in the Charter of the United Nations. It also means that, within the juvenile justice system, the treatment and education of children shall be directed to the development of respect for human rights and freedoms (art. 29 (1) (b) of CRC and general comment No. 1 on the aims of education). It is obvious that this principle of juvenile justice requires a full respect for and implementation of the guarantees for a fair trial recognized in article 40 (2) (see paragraphs 40-67 below). If the key actors in juvenile justice, such as police officers, prosecutors, judges and probation officers, do not fully respect and protect these guarantees, how can they expect that with such poor examples the child will respect the human rights and fundamental freedom of others?; - Treatment that takes into account the child’s age and promotes the child’s reintegration and the child’s assuming a constructive role in society. This principle must be applied, observed and respected throughout the entire process of dealing with the child, from the first contact with law enforcement agencies all the way to the implementation of all measures for dealing with the child. It requires that all professionals involved in the administration of juvenile justice be knowledgeable about child development, the dynamic and continuing growth of children, what is appropriate to their well-being, and the pervasive forms of violence against children; - Respect for the dignity of the child requires that all forms of violence in the treatment of children in conflict with the law must be prohibited and prevented. Reports received by the Committee show that violence occurs in all phases of the juvenile justice process, from the first contact with the police, during pretrial detention and during the stay in treatment and other facilities for children sentenced to deprivation of liberty. The committee urges the States parties to take effective measures to prevent such violence and to make sure that the perpetrators are brought to justice and to give effective follow-up to the recommendations made in the report on the United Nations Study on Violence Against Children presented to the General Assembly in October 2006 (A/61/299). 14. The Committee acknowledges that the preservation of public safety is a legitimate aim of the justice system. However, it is of the opinion that this aim is best served by a full respect for and implementation of the leading and overarching principles of juvenile justice as enshrined in CRC. 122
15. A comprehensive policy for juvenile justice must deal with the following core elements: the prevention of juvenile delinquency; interventions without resorting to judicial proceedings and interventions in the context of judicial proceedings; the minimum age of criminal responsibility and the upper age-limits for juvenile justice; the guarantees for a fair trial; and deprivation of liberty including pretrial detention and post-trial incarceration.
A. PREVENTION OF JUVENILE DELINQUENCY 16. One of the most important goals of the implementation of CRC is to promote the full and harmonious development of the child’s personality, talents and mental and physical abilities (preamble, and articles 6 and 29). The child should be prepared to live an individual and responsible life in a free society (preamble, and article 29), in which he/she can assume a constructive role with respect for human rights and fundamental freedoms (arts. 29 and 40). In this regard, parents have the responsibility to provide the child, in a manner consistent with his evolving capacities, with appropriate direction and guidance in the exercise of her/his rights as recognized in the Convention. In the light of these and other provisions of CRC, it is obviously not in the best interests of the child if he/she grows up in circumstances that may cause an increased or serious risk of becoming involved in criminal activities. Various measures should be taken for the full and equal implementation of the rights to an adequate standard of living (art. 27), to the highest attainable standard of health and access to health care (art. 24), to education (arts. 28 and 29), to protection from all forms of physical or mental violence, injury or abuse (art. 19), and from economic or sexual exploitation (arts. 32 and 34), and to other appropriate services for the care or protection of children. 17. As stated above, a juvenile justice policy without a set of measures aimed at preventing juvenile delinquency suffers from serious shortcomings. States parties should fully integrate into their comprehensive national policy for juvenile justice the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) adopted by the General Assembly in its resolution 45/112 of 14 December 1990. 18. The Committee fully supports the Riyadh Guidelines and agrees that emphasis should be placed on prevention policies that facilitate the successful socialization and integration of all children, in particular through the family, the community, peer groups, schools, vocational training and the world of work, as well as through voluntary organizations. This means, inter alia that prevention programmes should focus on support for particularly vulnerable families, the involvement of schools in teaching basic values (including information about the rights and responsibilities of children and parents under the law), and extending special care and attention to young persons at risk. In this regard, particular attention should also be given to children who drop out of school or otherwise do not
BACK
KEYWORDS INDEX
U PV EDR A TED SION complete their education. The use of peer group support and a strong involvement of parents are recommended. The States parties should also develop community-based services and programmes that respond to the special needs, problems, concerns and interests of children, in particular of children repeatedly in conflict with the law, and that provide appropriate counselling and guidance to their families. 19. Articles 18 and 27 of CRC confirm the importance of the responsibility of parents for the upbringing of their children, but at the same time CRC requires States parties to provide the necessary assistance to parents (or other caretakers), in the performance of their parental responsibilities. The measures of assistance should not only focus on the prevention of negative situations, but also and even more on the promotion of the social potential of parents. There is a wealth of information on home- and family-based prevention programmes, such as parent training, programmes to enhance parent-child interaction and home visitation programmes, which can start at a very young age of the child. In addition, early childhood education has shown to be correlated with a lower rate of future violence and crime. At the community level, positive results have been achieved with programmes such as Communities that Care (CTC), a risk-focused prevention strategy. 20. States parties should fully promote and support the involvement of children, in accordance with article 12 of CRC, and of parents, community leaders and other key actors (e.g. representatives of NGOs, probation services and social workers), in the development and implementation of prevention programmes. The quality of this involvement is a key factor in the success of these programmes. 21. The Committee recommends that States parties seek support and advice from the Interagency Panel on Juvenile Justice in their efforts to develop effective prevention programmes.
guidance and supervision, counselling, probation, foster care, educational and training programmes, and other alternatives to institutional care (art. 40 (4)).
INTERVENTIONS WITHOUT RESORTING TO JUDICIAL PROCEEDINGS 24. According to article 40 (3) of CRC, the States parties shall seek to promote measures for dealing with children alleged as, accused of, or recognized as having infringed the penal law without resorting to judicial proceedings, whenever appropriate and desirable. Given the fact that the majority of child offenders commit only minor offences, a range of measures involving removal from criminal/juvenile justice processing and referral to alternative (social) services (i.e. diversion) should be a well-established practice that can and should be used in most cases. 25. In the opinion of the Committee, the obligation of States parties to promote measures for dealing with children in conflict with the law without resorting to judicial proceedings applies, but is certainly not limited to children who commit minor offences, such as shoplifting or other property offences with limited damage, and first-time child offenders. Statistics in many States parties indicate that a large part, and often the majority, of offences committed by children fall into these categories. It is in line with the principles set out in article 40 (1) of CRC to deal with all such cases without resorting to criminal law procedures in court. In addition to avoiding stigmatization, this approach has good results for children and is in the interests of public safety, and has proven to be more cost-effective. 26. States parties should take measures for dealing with children in conflict with the law without resorting to judicial proceedings as an integral part of their juvenile justice system, and ensure that children’s human rights and legal safeguards are thereby fully respected and protected (art. 40 (3) (b)). 27. It is left to the discretion of States parties to decide on
B. INTERVENTIONS/DIVERSION (SEE ALSO the exact nature and content of the measures for dealing with children in conflict with the law without resorting to SECTION E BELOW) 22. Two kinds of interventions can be used by the State authorities for dealing with children alleged as, accused of, or recognized as having infringed the penal law: measures without resorting to judicial proceedings and measures in the context of judicial proceedings. The Committee reminds States parties that utmost care must be taken to ensure that the child’s human rights and legal safeguards are thereby fully respected and protected. 23. Children in conflict with the law, including child recidivists, have the right to be treated in ways that promote their reintegration and the child’s assuming a constructive role in society (art. 40 (1) of CRC). The arrest, detention or imprisonment of a child may be used only as a measure of last resort (art. 37 (b)). It is, therefore, necessary - as part of a comprehensive policy for juvenile justice - to develop and implement a wide range of measures to ensure that children are dealt with in a manner appropriate to their well-being, and proportionate to both their circumstances and the offence committed. These should include care,
judicial proceedings, and to take the necessary legislative and other measures for their implementation. Nonetheless, on the basis of the information provided in the reports from some States parties, it is clear that a variety of community-based programmes have been developed, such as community service, supervision and guidance by for example social workers or probation officers, family conferencing and other forms of restorative justice including restitution to and compensation of victims. Other States parties should benefit from these experiences. As far as full respect for human rights and legal safeguards is concerned, the Committee refers to the relevant parts of article 40 of CRC and emphasizes the following:
- Diversion (i.e. measures for dealing with children, alleged as, accused of, or recognized as having infringed the penal law without resorting to judicial proceedings) should be used only when there is compelling evidence that the child committed the alleged offence, that he/ she freely and voluntarily admits responsibility, and that no intimidation or pressure has been used to get that
BI A CK N D E X
123
U PV EDR A TED SION admission and, finally, that the admission will not be used against him/her in any subsequent legal proceeding; - The child must freely and voluntarily give consent in writing to the diversion, a consent that should be based on adequate and specific information on the nature, content and duration of the measure, and on the consequences of a failure to cooperate, carry out and complete the measure. With a view to strengthening parental involvement, States parties may also consider requiring the consent of parents, in particular when the child is below the age of 16 years; - The law has to contain specific provisions indicating in which cases diversion is possible, and the powers of the police, prosecutors and/or other agencies to make decisions in this regard should be regulated and reviewed, in particular to protect the child from discrimination; - The child must be given the opportunity to seek legal or other appropriate assistance on the appropriateness and desirability of the diversion offered by the competent authorities, and on the possibility of review of the measure; - The completion of the diversion by the child should result in a definite and final closure of the case. Although confidential records can be kept of diversion for administrative and review purposes, they should not be viewed as “criminal records” and a child who has been previously diverted must not be seen as having a previous conviction. If any registration takes place of this event, access to that information should be given exclusively and for a limited period of time, e.g. for a maximum of one year, to the competent authorities authorized to deal with children in conflict with the law.
INTERVENTIONS IN THE CONTEXT OF JUDICIAL PROCEEDINGS 28. When judicial proceedings are initiated by the competent authority (usually the prosecutor’s office), the principles of a fair and just trial must be applied (see section D below). At the same time, the juvenile justice system should provide for ample opportunities to deal with children in conflict with the law by using social and/ or educational measures, and to strictly limit the use of deprivation of liberty, and in particular pretrial detention, as a measure of last resort. In the disposition phase of the proceedings, deprivation of liberty must be used only as a measure of last resort and for the shortest appropriate period of time (art. 37 (b)). This means that States parties should have in place a well-trained probation service to allow for the maximum and effective use of measures such as guidance and supervision orders, probation, community monitoring or day report centres, and the possibility of early release from detention. 29. The Committee reminds States parties that, pursuant to article 40 (1) of CRC, reintegration requires that no action may be taken that can hamper the child’s full participation in his/her community, such as stigmatization, social isolation, or negative publicity of the child. For a child in conflict with the law to be dealt with in a way that promotes reintegration requires that all actions should support the child becoming a full, constructive member of his/her society. 124
C. AGE AND CHILDREN IN CONFLICT WITH THE LAW THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY 30. The reports submitted by States parties show the existence of a wide range of minimum ages of criminal responsibility. They range from a very low level of age 7 or 8 to the commendable high level of age 14 or 16. Quite a few States parties use two minimum ages of criminal responsibility. Children in conflict with the law who at the time of the commission of the crime are at or above the lower minimum age but below the higher minimum age are assumed to be criminally responsible only if they have the required maturity in that regard. The assessment of this maturity is left to the court/judge, often without the requirement of involving a psychological expert, and results in practice in the use of the lower minimum age in cases of serious crimes. The system of two minimum ages is often not only confusing, but leaves much to the discretion of the court/judge and may result in discriminatory practices. In the light of this wide range of minimum ages for criminal responsibility the Committee feels that there is a need to provide the States parties with clear guidance and recommendations regarding the minimum age of criminal responsibility. 31. Article 40 (3) of CRC requires States parties to seek to promote, inter alia, the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law, but does not mention a specific minimum age in this regard. The committee understands this provision as an obligation for States parties to set a minimum age of criminal responsibility (MACR). This minimum age means the following: - Children who commit an offence at an age below that minimum cannot be held responsible in a penal law procedure. Even (very) young children do have the capacity to infringe the penal law but if they commit an offence when below MACR the irrefutable assumption is that they cannot be formally charged and held responsible in a penal law procedure. For these children special protective measures can be taken if necessary in their best interests; - Children at or above the MACR at the time of the commission of an offence (or: infringement of the penal law) but younger than 18 years (see also paragraphs 3538 below) can be formally charged and subject to penal law procedures. But these procedures, including the final outcome, must be in full compliance with the principles and provisions of CRC as elaborated in the present general comment. 32. Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally
BACK
KEYWORDS INDEX
U PV EDR A TED SION
acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level. 33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected. In this regard, States parties should inform the Committee in their reports in specific detail how children below the MACR set in their laws are treated when they are recognized as having infringed the penal law, or are alleged as or accused of having done so, and what kinds of legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or above MACR. 34. The Committee wishes to express its concern about the practice of allowing exceptions to a MACR which permit the use of a lower minimum age of criminal responsibility in cases where the child, for example, is accused of committing a serious offence or where the child is considered mature enough to be held criminally responsible. The Committee strongly recommends that States parties set a MACR that does not allow, by way of exception, the use of a lower age. 35. If there is no proof of age and it cannot be established that the child is at or above the MACR, the child shall not be held criminally responsible (see also paragraph 39 below).
THE UPPER AGE-LIMIT FOR JUVENILE JUSTICE 36. The Committee also wishes to draw the attention of States parties to the upper age-limit for the application of the rules of juvenile justice. These special rules - in terms both of special procedural rules and of rules for diversion and special measures - should apply, starting at the MACR set in the country, for all children who, at the time of their alleged commission of an offence (or act punishable under the criminal law), have not yet reached the age of 18 years. 37. The Committee wishes to remind States parties that they have recognized the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in accordance with the provisions of article 40 of CRC. This means that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice. 38. The Committee, therefore, recommends that those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with
a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years. The Committee notes with appreciation that some States parties allow for the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually till the age of 21, either as a general rule or by way of exception. 39. Finally, the Committee wishes to emphasize the fact that it is crucial for the full implementation of article 7 of CRC requiring, inter alia, that every child shall be registered immediately after birth to set age-limits one way or another, which is the case for all States parties. A child without a provable date of birth is extremely vulnerable to all kinds of abuse and injustice regarding the family, work, education and labour, particularly within the juvenile justice system. Every child must be provided with a birth certificate free of charge whenever he/she needs it to prove his/her age. If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.
D. THE GUARANTEES FOR A FAIR TRIAL 40. Article 40 (2) of CRC contains an important list of rights and guarantees that are all meant to ensure that every child alleged as or accused of having infringed the penal law receives fair treatment and trial. Most of these guarantees can also be found in article 14 of the International Covenant on Civil and Political Rights (ICCPR), which the Human Rights Committee elaborated and commented on in its general comment No. 13 (1984) (Administration of justice) which is currently in the process of being reviewed. However, the implementation of these guarantees for children does have some specific aspects which will be presented in this section. Before doing so, the Committee wishes to emphasize that a key condition for a proper and effective implementation of these rights or guarantees is the quality of the persons involved in the administration of juvenile justice. The training of professionals, such as police officers, prosecutors, legal and other representatives of the child, judges, probation officers, social workers and others is crucial and should take place in a systematic and ongoing manner. These professionals should be well informed about the child’s, and particularly about the adolescent’s physical, psychological, mental and social development, as well as about the special needs of the most vulnerable children, such as children with disabilities, displaced children, street children, refugee and asylumseeking children, and children belonging to racial, ethnic, religious, linguistic or other minorities (see paragraphs 6-9 above). Since girls in the juvenile justice system may be easily overlooked because they represent only a small
BI A CK N D E X
125
U PV EDR A TED SION group, special attention must be paid to the particular needs of the girl child, e.g. in relation to prior abuse and special health needs. Professionals and staff should act under all circumstances in a manner consistent with the child’s dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others, and which promotes the child’s reintegration and his/her assuming a constructive role in society (art. 40 (1)). All the guarantees recognized in article 40 (2), which will be dealt with hereafter, are minimum standards, meaning that States parties can and should try to establish and observe higher standards, e.g. in the areas of legal assistance and the involvement of the child and her/his parents in the judicial process.
NO RETROACTIVE JUVENILE JUSTICE (ART. 40 (2) (A)) 41. Article 40 (2) (a) of CRC affirms that the rule that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed is also applicable to children (see also article 15 of ICCPR). It means that no child can be charged with or sentenced under the penal law for acts or omissions which at the time they were committed were not prohibited under national or international law. In the light of the fact that many States parties have recently strengthened and/or expanded their criminal law provisions to prevent and combat terrorism, the Committee recommends that States parties ensure that these changes do not result in retroactive or unintended punishment of children. The Committee also wishes to remind States parties that the rule that no heavier penalty shall be imposed than the one that was applicable at the time when the criminal offence was committed, as expressed in article 15 of ICCPR, is in the light of article 41 of CRC, applicable to children in the States parties to ICCPR. No child shall be punished with a heavier penalty than the one applicable at the time of his/ her infringement of the penal law. But if a change of law after the act provides for a lighter penalty, the child should benefit from this change.
THE PRESUMPTION OF INNOCENCE (ART. 40 (2) (B) (I)) 42. The presumption of innocence is fundamental to the protection of the human rights of children in conflict with the law. It means that the burden of proof of the charge(s) brought against the child is on the prosecution. The child alleged as or accused of having infringed the penal law has the benefit of doubt and is only guilty as charged if these charges have been proven beyond reasonable doubt. The child has the right to be treated in accordance with this presumption and it is the duty of all public authorities or others involved to refrain from prejudging the outcome of the trial. States parties should provide information about child development to ensure that this presumption of innocence is respected in practice. Due to the lack of understanding of the process, immaturity, fear or other reasons, the child may behave in a suspicious manner, but the authorities must not assume that the child is guilty without proof of guilt beyond any reasonable doubt.
126
THE RIGHT TO BE HEARD (ART. 12) 43. Article 12 (2) of CRC requires that a child be provided with the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law. 44. It is obvious that for a child alleged as, accused of, or recognized as having infringed the penal law, the right to be heard is fundamental for a fair trial. It is equally obvious that the child has the right to be heard directly and not only through a representative or an appropriate body if it is in her/his best interests. This right must be fully observed at all stages of the process, starting with pretrial stage when the child has the right to remain silent, as well as the right to be heard by the police, the prosecutor and the investigating judge. But it also applies to the stages of adjudication and of implementation of the imposed measures. In other words, the child must be given the opportunity to express his/her views freely, and those views should be given due weight in accordance with the age and maturity of the child (art. 12 (1)), throughout the juvenile justice process. This means that the child, in order to effectively participate in the proceedings, must be informed not only of the charges (see paragraphs 47-48 below), but also of the juvenile justice process as such and of the possible measures. 45. The child should be given the opportunity to express his/her views concerning the (alternative) measures that may be imposed, and the specific wishes or preferences he/she may have in this regard should be given due weight. Alleging that the child is criminally responsible implies that he/she should be competent and able to effectively participate in the decisions regarding the most appropriate response to allegations of his/her infringement of the penal law (see paragraph 46 below). It goes without saying that the judges involved are responsible for taking the decisions. But to treat the child as a passive object does not recognize his/her rights nor does it contribute to an effective response to his/her behaviour. This also applies to the implementation of the measure(s) imposed. Research shows that an active engagement of the child in this implementation will, in most cases, contribute to a positive result.
THE RIGHT TO EFFECTIVE PARTICIPATION IN THE PROCEEDINGS (ART 40 (2) (B) (IV)) 46. A fair trial requires that the child alleged as or accused of having infringed the penal law be able to effectively participate in the trial, and therefore needs to comprehend the charges, and possible consequences and penalties, in order to direct the legal representative, to challenge witnesses, to provide an account of events, and to make appropriate decisions about evidence, testimony and the measure(s) to be imposed. Article 14 of the Beijing Rules provides that the proceedings should be conducted in an atmosphere of understanding to allow the child to
BACK
KEYWORDS INDEX
U PV EDR A TED SION participate and to express himself/herself freely. Taking into account the child’s age and maturity may also require modified courtroom procedures and practices.
PROMPT AND DIRECT INFORMATION OF THE CHARGE(S) (ART. 40 (2) (B) (II)) 47. Every child alleged as or accused of having infringed the penal law has the right to be informed promptly and directly of the charges brought against him/her. Prompt and direct means as soon as possible, and that is when the prosecutor or the judge initially takes procedural steps against the child. But also when the authorities decide to deal with the case without resorting to judicial proceedings, the child must be informed of the charge(s) that may justify this approach. This is part of the requirement of article 40 (3) (b) of CRC that legal safeguards should be fully respected. The child should be informed in a language he/ she understands. This may require a presentation of the information in a foreign language but also a “translation” of the formal legal jargon often used in criminal/juvenile charges into a language that the child can understand. 48. Providing the child with an official document is not enough and an oral explanation may often be necessary. The authorities should not leave this to the parents or legal guardians or the child’s legal or other assistance. It is the responsibility of the authorities (e.g. police, prosecutor, judge) to make sure that the child understands each charge brought against him/her. The Committee is of the opinion that the provision of this information to the parents or legal guardians should not be an alternative to communicating this information to the child. It is most appropriate if both the child and the parents or legal guardians receive the information in such a way that they can understand the charge(s) and the possible consequences.
LEGAL OR OTHER APPROPRIATE ASSISTANCE (ART. 40 (2) (B) (II)) 49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of States parties to determine how this assistance is provided but it should be free of charge. The Committee recommends the State parties provide as much as possible for adequate trained legal assistance, such as expert lawyers or paralegal professionals. Other appropriate assistance is possible (e.g. social worker), but that person must have sufficient knowledge and understanding of the various legal aspects of the process of juvenile justice and must be trained to work with children in conflict with the law. 50. As required by article 14 (3) (b) of ICCPR, the child and his/her assistant must have adequate time and facilities for the preparation of his/her defence. Communications between the child and his/her assistance, either in writing or orally, should take place under such conditions that the confidentiality of such communications is fully respected in accordance with the guarantee provided for in article 40 (2) (b) (vii) of CRC, and the right of the child to be protected against interference with his/her privacy and
correspondence (art. 16 of CRC). A number of States parties have made reservations regarding this guarantee (art. 40 (2) (b) (ii) of CRC), apparently assuming that it requires exclusively the provision of legal assistance and therefore by a lawyer. That is not the case and such reservations can and should be withdrawn.
DECISIONS WITHOUT DELAY AND WITH INVOLVEMENT OF PARENTS (ART. 40 (2) (B) (III)) 51. Internationally there is a consensus that for children in conflict with the law the time between the commission of the offence and the final response to this act should be as short as possible. The longer this period, the more likely it is that the response loses its desired positive, pedagogical impact, and the more the child will be stigmatized. In this regard, the Committee also refers to article 37 (d) of CRC, where the child deprived of liberty has the right to a prompt decision on his/her action to challenge the legality of the deprivation of his/her liberty. The term “prompt” is even stronger - and justifiably so given the seriousness of deprivation of liberty - than the term “without delay” (art. 40 (2) (b) (iii) of CRC), which is stronger than the term “without undue delay” of article 14 (3) (c) of ICCPR. 52. The Committee recommends that the States parties set and implement time limits for the period between the commission of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police. 53. Parents or legal guardians should also be present at the proceedings because they can provide general psychological and emotional assistance to the child. The presence of parents does not mean that parents can act in defence of the child or be involved in the decision-making process. However, the judge or competent authority may decide, at the request of the child or of his/her legal or other appropriate assistance or because it is not in the best interests of the child (art. 3 of CRC), to limit, restrict or exclude the presence of the parents from the proceedings. 54. The Committee recommends that States parties explicitly provide by law for the maximum possible involvement of parents or legal guardians in the proceedings against the child. This involvement shall in general contribute to an effective response to the child’s infringement of the penal law. To promote parental involvement, parents must be notified of the apprehension of their child as soon as possible. 55. At the same time, the Committee regrets the trend in some countries to introduce the punishment of parents
BI A CK N D E X
127
U PV EDR A TED SION for the offences committed by their children. Civil liability for the damage caused by the child’s act can, in some limited cases, be appropriate, in particular for the younger children (e.g. below 16 years of age). But criminalizing parents of children in conflict with the law will most likely not contribute to their becoming active partners in the social reintegration of their child.
FREEDOM FROM COMPULSORY SELFINCRIMINATION (ART. 40 (2) (B) (III)) 56. In line with article 14 (3) (g) of ICCPR, CRC requires that a child be not compelled to give testimony or to confess or acknowledge guilt. This means in the first place - and self-evidently - that torture, cruel, inhuman or degrading treatment in order to extract an admission or a confession constitutes a grave violation of the rights of the child (art. 37 (a) of CRC) and is wholly unacceptable. No such admission or confession can be admissible as evidence (article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). 57. There are many other less violent ways to coerce or to lead the child to a confession or a self-incriminatory testimony. The term “compelled” should be interpreted in a broad manner and not be limited to physical force or other clear violations of human rights. The age of the child, the child’s development, the length of the interrogation, the child’s lack of understanding, the fear of unknown consequences or of a suggested possibility of imprisonment may lead him/her to a confession that is not true. That may become even more likely if rewards are promised such as: “You can go home as soon as you have given us the true story”, or lighter sanctions or release are promised. 58. The child being questioned must have access to a legal or other appropriate representative, and must be able to request the presence of his/her parent(s) during questioning. There must be independent scrutiny of the methods of interrogation to ensure that the evidence is voluntary and not coerced, given the totality of the circumstances, and is reliable. The court or other judicial body, when considering the voluntary nature and reliability of an admission or confession by a child, must take into account the age of the child, the length of custody and interrogation, and the presence of legal or other counsel, parent(s), or independent representatives of the child. Police officers and other investigating authorities should be well trained to avoid interrogation techniques and practices that result in coerced or unreliable confessions or testimonies.
128
PRESENCE AND EXAMINATION OF WITNESSES (ART. 40 (2) (B) (IV)) 59. The guarantee in article 40 (2) (b) (iv) of CRC underscores that the principle of equality of arms (i.e. under conditions of equality or parity between defence and prosecution) should be observed in the administration of juvenile justice. The term “to examine or to have examined” refers to the fact that there are distinctions in the legal systems, particularly between the accusatorial and inquisitorial trials. In the latter, the defendant is often allowed to examine witnesses although he/she rarely uses this right, leaving examination of the witnesses to the lawyer or, in the case of children, to another appropriate body. However, it remains important that the lawyer or other representative informs the child of the possibility to examine witnesses and to allow him/her to express his/her views in that regard, views which should be given due weight in accordance with the age and maturity of the child (art. 12).
THE RIGHT TO APPEAL (ART. 40 (2) (B) (V)) 60. The child has the right to appeal against the decision by which he is found guilty of the charge(s) brought against him/her and against the measures imposed as a consequence of this guilty verdict. This appeal should be decided by a higher, competent, independent and impartial authority or judicial body, in other words, a body that meets the same standards and requirements as the one that dealt with the case in the first instance. This guarantee is similar to the one expressed in article 14 (5) of ICCPR. This right of appeal is not limited to the most serious offences. 61. This seems to be the reason why quite a few States parties have made reservations regarding this provision in order to limit this right of appeal by the child to the more serious offences and/or imprisonment sentences. The Committee reminds States parties to the ICCPR that a similar provision is made in article 14 (5) of the Covenant. In the light of article 41 of CRC, it means that this article should provide every adjudicated child with the right to appeal. The Committee recommends that the States parties withdraw their reservations to the provision in article 40 (2) (b) (v).
FREE ASSISTANCE OF AN INTERPRETER (ART. 40 (2) (VI)) 62. If a child cannot understand or speak the language used by the juvenile justice system, he/she has the right to get free assistance of an interpreter. This assistance should not be limited to the court trial but should also be available at all stages of the juvenile justice process. It is also important that the interpreter has been trained to work with children, because the use and understanding of their mother tongue might be different from that of adults. Lack of knowledge and/or experience in that regard may impede the child’s full understanding of the questions raised, and interfere with the right to a fair trial and to effective participation. The condition starting with “if”, “if the child cannot understand or speak the language used”, means that a child of a foreign or ethnic origin for example, who - besides his/her mother tongue - understands and speaks the official language, does not have to be provided with the free assistance of an interpreter.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 63. The Committee also wishes to draw the attention of States parties to children with speech impairment or other disabilities. In line with the spirit of article 40 (2) (vi), and in accordance with the special protection measures provided to children with disabilities in article 23, the Committee recommends that States parties ensure that children with speech impairment or other disabilities are provided with adequate and effective assistance by welltrained professionals, e.g. in sign language, in case they are subject to the juvenile justice process (see also in this regard general comment No. 9 (The rights of children with disabilities) of the Committee on the Rights of the Child.
FULL RESPECT OF PRIVACY (ARTS. 16 AND 40 (2) (B) (VII)) 64. The right of a child to have his/her privacy fully respected during all stages of the proceedings reflects the right to protection of privacy enshrined in article 16 of CRC. “All stages of the proceedings” includes from the initial contact with law enforcement (e.g. a request for information and identification) up until the final decision by a competent authority, or release from supervision, custody or deprivation of liberty. In this particular context, it is meant to avoid harm caused by undue publicity or by the process of labelling. No information shall be published that may lead to the identification of a child offender because of its effect of stigmatization, and possible impact on his/ her ability to have access to education, work, housing or to be safe. It means that a public authority should be very reluctant with press releases related to offences allegedly committed by children and limit them to very exceptional cases. They must take measures to guarantee that children are not identifiable via these press releases. Journalists who violate the right to privacy of a child in conflict with the law should be sanctioned with disciplinary and when necessary (e.g. in case of recidivism) with penal law sanctions. 65. In order to protect the privacy of the child, most States parties have as a rule - sometimes with the possibility of exceptions - that the court or other hearings of a child accused of an infringement of the penal law should take place behind closed doors. This rule allows for the presence of experts or other professionals with a special permission of the court. Public hearings in juvenile justice should only be possible in well-defined cases and at the written decision of the court. Such a decision should be open for appeal by the child. 66. The Committee recommends that all States parties introduce the rule that court and other hearings of a child in conflict with the law be conducted behind closed doors. Exceptions to this rule should be very limited and clearly stated in the law. The verdict/sentence should be pronounced in public at a court session in such a way that the identity of the child is not revealed. The right to privacy (art. 16) requires all professionals involved in the implementation of the measures taken by the court or another competent authority to keep all information that may result in the identification of the child confidential in all their external contacts. Furthermore, the right to privacy also means that the records of child offenders should be kept strictly confidential and closed to third parties except for those directly involved in the investigation and
adjudication of, and the ruling on, the case. With a view to avoiding stigmatization and/or prejudgements, records of child offenders should not be used in adult proceedings in subsequent cases involving the same offender (see the Beijing Rules, rules 21.1 and 21.2), or to enhance such future sentencing. 67. The Committee also recommends that the States parties introduce rules which would allow for an automatic removal from the criminal records of the name of the child who committed an offence upon reaching the age of 18, or for certain limited, serious offences where removal is possible at the request of the child, if necessary under certain conditions (e.g. not having committed an offence within two years after the last conviction).
E. MEASURES (SEE ALSO CHAPTER IV, SECTION B, ABOVE) PRETRIAL ALTERNATIVES 68. The decision to initiate a formal criminal law procedure does not necessarily mean that this procedure must be completed with a formal court sentence for a child. In line with the observations made above in section B, the Committee wishes to emphasize that the competent authorities - in most States the office of the public prosecutor - should continuously explore the possibilities of alternatives to a court conviction. In other words, efforts to achieve an appropriate conclusion of the case by offering measures like the ones mentioned above in section B should continue. The nature and duration of these measures offered by the prosecution may be more demanding, and legal or other appropriate assistance for the child is then necessary. The performance of such a measure should be presented to the child as a way to suspend the formal criminal/juvenile law procedure, which will be terminated if the measure has been carried out in a satisfactory manner. 69. In this process of offering alternatives to a court conviction at the level of the prosecutor, the child’s human rights and legal safeguards should be fully respected. In this regard, the Committee refers to the recommendations set out in paragraph 27 above, which equally apply here.
DISPOSITIONS BY THE JUVENILE COURT/ JUDGE 70. After a fair and just trial in full compliance with article 40 of CRC (see chapter IV, section D, above), a decision is made regarding the measures which should be imposed on the child found guilty of the alleged offence(s). The laws must provide the court/judge, or other competent, independent and impartial authority or judicial body, with a wide variety of possible alternatives to institutional care and deprivation of liberty, which are listed in a nonexhaustive manner in article 40 (4) of CRC, to assure that deprivation of liberty be used only as a measure of last resort and for the shortest possible period of time (art. 37 (b) of CRC). 71. The Committee wishes to emphasize that the reaction to an offence should always be in proportion not only to
BI A CK N D E X
129
U PV EDR A TED SION the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in article 40 (1) of CRC (see paragraphs 5-14 above). The Committee reiterates that corporal punishment as a sanction is a violation of these principles as well as of article 37 which prohibits all forms of cruel, inhuman and degrading treatment or punishment (see also the Committee’s general comment No. 8 (2006) (The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment)). In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration. 72. The Committee notes that if a penal disposition is linked to the age of a child, and there is conflicting, inconclusive or uncertain evidence of the child’s age, he/she shall have the right to the rule of the benefit of the doubt (see also paragraphs 35 and 39 above). 73. As far as alternatives to deprivation of liberty/ institutional care are concerned, there is a wide range of experience with the use and implementation of such measures. States parties should benefit from this experience, and develop and implement these alternatives by adjusting them to their own culture and tradition. It goes without saying that measures amounting to forced labour or to torture or inhuman and degrading treatment must be explicitly prohibited, and those responsible for such illegal practices should be brought to justice.
77. No child who was under the age of 18 at the time he or she committed an offence should be sentenced to life without the possibility of release or parole. For all sentences imposed upon children the possibility of release should be realistic and regularly considered. In this regard, the Committee refers to article 25 of CRC providing the right to periodic review for all children placed for the purpose of care, protection or treatment. The Committee reminds the States parties which do sentence children to life imprisonment with the possibility of release or parole that this sanction must fully comply with and strive for the realization of the aims of juvenile justice enshrined in article 40 (1) of CRC. This means inter alia that the child sentenced to this imprisonment should receive education, treatment, and care aiming at his/her release, reintegration and ability to assume a constructive role in society. This also requires a regular review of the child’s development and progress in order to decide on his/her possible release. Given the likelihood that a life imprisonment of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release, the Committee strongly recommends the States parties to abolish all forms of life imprisonment for offences committed by persons under the age of 18.
F. DEPRIVATION OF LIBERTY, INCLUDING PRETRIAL DETENTION AND POST-TRIAL INCARCERATION
74. After these general remarks, the Committee wishes to draw attention to the measures prohibited under article 37 (a) of CRC, and to deprivation of liberty.
78. Article 37 of CRC contains the leading principles for the use of deprivation of liberty, the procedural rights of every child deprived of liberty, and provisions concerning the treatment of and conditions for children deprived of their liberty.
PROHIBITION OF THE DEATH PENALTY
BASIC PRINCIPLES
75. Article 37 (a) of CRC reaffirms the internationally accepted standard (see for example article 6 (5) of ICCPR) that the death penalty cannot be imposed for a crime committed by a person who at that time was under 18 years of age. Although the text is clear, there are States parties that assume that the rule only prohibits the execution of persons below the age of 18 years. However, under this rule the explicit and decisive criteria is the age at the time of the commission of the offence. It means that a death penalty may not be imposed for a crime committed by a person under 18 regardless of his/her age at the time of the trial or sentencing or of the execution of the sanction. 76. The Committee recommends the few States parties that have not done so yet to abolish the death penalty for all offences committed by persons below the age of 18 years and to suspend the execution of all death sentences for those persons till the necessary legislative measures abolishing the death penalty for children have been fully enacted. The imposed death penalty should be changed to a sanction that is in full conformity with CRC. 130
NO LIFE IMPRISONMENT WITHOUT PAROLE
79. The leading principles for the use of deprivation of liberty are: (a) the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; and (b) no child shall be deprived of his/her liberty unlawfully or arbitrarily. 80. The Committee notes with concern that, in many countries, children languish in pretrial detention for months or even years, which constitutes a grave violation of article 37 (b) of CRC. An effective package of alternatives must be available (see chapter IV, section B, above), for the States parties to realize their obligation under article 37 (b) of CRC to use deprivation of liberty only as a measure of last resort. The use of these alternatives must be carefully structured to reduce the use of pretrial detention as well, rather than “widening the net” of sanctioned children. In addition, the States parties should take adequate legislative and other measures to reduce the use of pretrial detention. Use of pretrial detention as a punishment violates the
BACK
KEYWORDS INDEX
U PV EDR A TED SION TREATMENT AND CONDITIONS (ART. 37 (C))
presumption of innocence. The law should clearly state the conditions that are required to determine whether to place or keep a child in pretrial detention, in particular to ensure his/her appearance at the court proceedings, and whether he/she is an immediate danger to himself/herself or others. The duration of pretrial detention should be limited by law and be subject to regular review. 81. The Committee recommends that the State parties ensure that a child can be released from pretrial detention as soon as possible, and if necessary under certain conditions. Decisions regarding pretrial detention, including its duration, should be made by a competent, independent and impartial authority or a judicial body, and the child should be provided with legal or other appropriate assistance.
PROCEDURAL RIGHTS (ART. 37 (D)) 82. Every child deprived of his/her liberty has the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. 83. Every child arrested and deprived of his/her liberty should be brought before a competent authority to examine the legality of (the continuation of) this deprivation of liberty within 24 hours. The Committee also recommends that the States parties ensure by strict legal provisions that the legality of a pretrial detention is reviewed regularly, preferably every two weeks. In case a conditional release of the child, e.g. by applying alternative measures, is not possible, the child should be formally charged with the alleged offences and be brought before a court or other competent, independent and impartial authority or judicial body, not later than 30 days after his/her pretrial detention takes effect. The Committee, conscious of the practice of adjourning court hearings, often more than once, urges the States parties to introduce the legal provisions necessary to ensure that the court/juvenile judge or other competent body makes a final decision on the charges not later than six months after they have been presented. 84. The right to challenge the legality of the deprivation of liberty includes not only the right to appeal, but also the right to access the court, or other competent, independent and impartial authority or judicial body, in cases where the deprivation of liberty is an administrative decision (e.g. the police, the prosecutor and other competent authority). The right to a prompt decision means that a decision must be rendered as soon as possible, e.g. within or not later than two weeks after the challenge is made.
85. Every child deprived of liberty shall be separated from adults. A child deprived of his/her liberty shall not be placed in an adult prison or other facility for adults. There is abundant evidence that the placement of children in adult prisons or jails compromises their basic safety, wellbeing, and their future ability to remain free of crime and to reintegrate. The permitted exception to the separation of children from adults stated in article 37 (c) of CRC, “unless it is considered in the child’s best interests not to do so”, should be interpreted narrowly; the child’s best interests does not mean for the convenience of the States parties. States parties should establish separate facilities for children deprived of their liberty, which include distinct, child centred staff, personnel, policies and practices. 86. This rule does not mean that a child placed in a facility for children has to be moved to a facility for adults immediately after he/she turns 18. Continuation of his/ her stay in the facility for children should be possible if that is in his/her best interest and not contrary to the best interests of the younger children in the facility. 87. Every child deprived of liberty has the right to maintain contact with his/her family through correspondence and visits. In order to facilitate visits, the child should be placed in a facility that is as close as possible to the place of residence of his/her family. Exceptional circumstances that may limit this contact should be clearly described in the law and not be left to the discretion of the competent authorities.. 88. The Committee draws the attention of States parties to the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by the General Assembly in its resolution 45/113 of 14 December 1990. The Committee urges the States parties to fully implement these rules, while also taking into account as far as relevant the Standard Minimum Rules for the Treatment of Prisoners (see also rule 9 of the Beijing Rules). In this regard, the Committee recommends that the States parties incorporate these rules into their national laws and regulations, and make them available, in the national or regional language, to all professionals, NGOs and volunteers involved in the administration of juvenile justice. 89. The Committee wishes to emphasize that, inter alia, the following principles and rules need to be observed in all cases of deprivation of liberty: - Children should be provided with a physical environment and accommodations which are in keeping with the rehabilitative aims of residential placement, and due regard must be given to their needs for privacy, sensory stimuli, opportunities to associate with their peers, and to participate in sports, physical exercise, in arts, and leisure time activities; - Every child of compulsory school age has the right to education suited to his/her needs and abilities, and designed to prepare him/her for return to society; in addition, every child should, when appropriate, receive vocational training in occupations likely to prepare him/ her for future employment;
BI A CK N D E X
131
U PV EDR A TED SION - Every child has the right to be examined by a physician upon admission to the detention/correctional facility and shall receive adequate medical care throughout his/ her stay in the facility, which should be provided, where possible, by health facilities and services of the community; - The staff of the facility should promote and facilitate frequent contacts of the child with the wider community, including communications with his/her family, friends and other persons or representatives of reputable outside organizations, and the opportunity to visit his/her home and family; - Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted. The use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment. Staff of the facility should receive training on the applicable standards and members of the staff who use restraint or force in violation of the rules and standards should be punished appropriately; - Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned; - Every child should have the right to make requests or complaints, without censorship as to the substance, to the central administration, the judicial authority or other proper independent authority, and to be informed of the response without delay; children need to know about and have easy access to these mechanisms; - Independent and qualified inspectors should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative; they should place special emphasis on holding conversations with children in the facilities, in a confidential setting.
132
THE ORGANIZATION OF JUVENILE JUSTICE
90. In order to ensure the full implementation of the principles and rights elaborated in the previous paragraphs, it is necessary to establish an effective organization for the administration of juvenile justice, and a comprehensive juvenile justice system. As stated in article 40 (3) of CRC, States parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children in conflict with the penal law. 91. What the basic provisions of these laws and procedures are required to be, has been presented in the present general comment. More and other provisions are left to the discretion of States parties. This also applies to the form of these laws and procedures. They can be laid down in special chapters of the general criminal and procedural law, or be brought together in a separate act or law on juvenile justice. 92. A comprehensive juvenile justice system further requires the establishment of specialized units within the police, the judiciary, the court system, the prosecutor’s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to the child. 93. The Committee recommends that the States parties establish juvenile courts either as separate units or as part of existing regional/district courts. Where that is not immediately feasible for practical reasons, the States parties should ensure the appointment of specialized judges or magistrates for dealing with cases of juvenile justice. 94. In addition, specialized services such as probation, counselling or supervision should be established together with specialized facilities including for example day treatment centres and, where necessary, facilities for residential care and treatment of child offenders. In this juvenile justice system, an effective coordination of the activities of all these specialized units, services and facilities should be promoted in an ongoing manner. 95. It is clear from many States parties’ reports that nongovernmental organizations can and do play an important role not only in the prevention of juvenile delinquency as such, but also in the administration of juvenile justice. The Committee therefore recommends that States parties seek the active involvement of these organizations in the development and implementation of their comprehensive juvenile justice policy and provide them with the necessary resources for this involvement.
BACK
KEYWORDS INDEX
AWARENESS-RAISING
U PV EDR A TED SION
DATA COLLECTION,
AND TRAINING
EVALUATION AND RESEARCH
96. Children who commit offences are often subject to negative publicity in the media, which contributes to a discriminatory and negative stereotyping of these children and often of children in general. This negative presentation or criminalization of child offenders is often based on misrepresentation and/or misunderstanding of the causes of juvenile delinquency, and results regularly in a call for a tougher approach (e.g. zero-tolerance, three strikes and you are out, mandatory sentences, trial in adult courts and other primarily punitive measures). To create a positive environment for a better understanding of the root causes of juvenile delinquency and a rights-based approach to this social problem, the States parties should conduct, promote and/or support educational and other campaigns to raise awareness of the need and the obligation to deal with children alleged of violating the penal law in accordance with the spirit and the letter of CRC. In this regard, the States parties should seek the active and positive involvement of members of parliament, NGOs and the media, and support their efforts in the improvement of the understanding of a rights-based approach to children who have been or are in conflict with the penal law. It is crucial for children, in particular those who have experience with the juvenile justice system, to be involved in these awareness-raising efforts. 97. It is essential for the quality of the administration of juvenile justice that all the professionals involved, inter alia, in law enforcement and the judiciary receive appropriate training on the content and meaning of the provisions of CRC in general, particularly those directly relevant to their daily practice. This training should be organized in a systematic and ongoing manner and should not be limited to information on the relevant national and international legal provisions. It should include information on, inter alia, the social and other causes of juvenile delinquency, psychological and other aspects of the development of children, with special attention to girls and children belonging to minorities or indigenous peoples, the culture and the trends in the world of young people, the dynamics of group activities, and the available measures dealing with children in conflict with the penal law, in particular measures without resorting to judicial proceedings (see chapter IV, section B, above).
98. The Committee is deeply concerned about the lack of even basic and disaggregated data on, inter alia, the number and nature of offences committed by children, the use and the average duration of pretrial detention, the number of children dealt with by resorting to measures other than judicial proceedings (diversion), the number of convicted children and the nature of the sanctions imposed on them. The Committee urges the States parties to systematically collect disaggregated data relevant to the information on the practice of the administration of juvenile justice, and necessary for the development, implementation and evaluation of policies and programmes aiming at the prevention and effective responses to juvenile delinquency in full accordance with the principles and provisions of CRC. 99. The Committee recommends that States parties conduct regular evaluations of their practice of juvenile justice, in particular of the effectiveness of the measures taken, including those concerning discrimination, reintegration and recidivism, preferably carried out by independent academic institutions. Research, as for example on the disparities in the administration of juvenile justice which may amount to discrimination, and developments in the field of juvenile delinquency, such as effective diversion programmes or newly emerging juvenile delinquency activities, will indicate critical points of success and concern. It is important that children are involved in this evaluation and research, in particular those who have been in contact with parts of the juvenile justice system. The privacy of these children and the confidentiality of their cooperation should be fully respected and protected. In this regard, the Committee refers the States parties to the existing international guidelines on the involvement of children in research.
BI A CK N D E X
133
number 11
U PV EDR A TED SION
IN T R O DUC T I ON 1. In the preamble of the Convention on the Rights of the Child, States parties take “due account of the importance and cultural values of each people for the protection and harmonious development of the child”. While all the rights contained in the Convention apply to all children, whether indigenous or not, the Convention on the Rights of the Child was the first core human rights treaty to include specific references to indigenous children in a number of provisions. 2. Article 30 of the Convention states that “In those States in which ethnic, religious, or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language.” 3. Furthermore, article 29 of the Convention provides that “education of the child shall be directed to the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin”. 4. Article 17 of the Convention also makes specific mention as States parties shall “encourage the mass media to have particular regard for the linguistic needs of the child who belongs to a minority group or who is indigenous”. 5. The specific references to indigenous children in the Convention are indicative of the recognition that they require special measures in order to fully enjoy their rights. The Committee on the Rights of the Child has consistently taken into account the situation of indigenous children in its reviews of periodic reports of States parties to the Convention. The Committee has observed that indigenous children face significant challenges in exercising their rights and has issued specific recommendations to this effect in its concluding observations. Indigenous children continue to experience serious discrimination contrary to article 2 of the Convention in a range of areas, including in their access to health care and education, which has prompted the need to adopt this general comment. 6. In addition to the Convention on the Rights of the Child, various human rights treaties, have played an important role in addressing the situation of indigenous children and their right not to be discriminated, namely, the International Convention on the Elimination of All Forms of Racial Discrimination, 1965, the International Covenant on Civil and Political Rights, 1966, and the International Covenant on Economic, Social and Cultural Rights, 1966. 7. The International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989 contains provisions which advance the rights of indigenous peoples and specifically highlights the rights of indigenous children in the area of education. 136
8. In 2001, the United Nations Commission on Human Rights appointed a Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, subsequently confirmed by the Human Rights Council in 2007. The Council has requested the Special Rapporteur to pay particular attention to the situation of indigenous children and several recommendations included in his annual and mission reports have focused on their specific situation. 9. In 2003, the United Nations Permanent Forum on Indigenous Issues held its second session on the theme indigenous children and youth and the same year the Committee on the Rights of the Child held its annual Day of General Discussion on the rights of indigenous children and adopted specific recommendations aimed primarily at States parties but also United Nations entities, human rights mechanisms, civil society, donors, the World Bank and regional development banks. 10. In 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples which provides important guidance on the rights of indigenous peoples, including specific reference to the rights of indigenous children in a number of areas.
OBJECTIVES AND STRUCTURE 11. This general comment on the rights of indigenous children as provided for by the Convention on the Rights of the Child draws on the legal developments and initiatives outlined above. 12. The primary objective of this general comment is to provide States with guidance on how to implement their obligations under the Convention with respect to indigenous children. The Committee bases this general comment on its experience in interpreting the provisions of the Convention in relation to indigenous children. Furthermore, the general comment is based upon the recommendations adopted following the Day of General
BACK
KEYWORDS INDEX
U PV EDR A TED SION Discussion on indigenous children in 2003 and reflects a consultative process with relevant stakeholders, including indigenous children themselves.
whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.2
13. The general comment aims to explore the specific challenges which impede indigenous children from being able to fully enjoy their rights and highlight special measures required to be undertaken by States in order to guarantee the effective exercise of indigenous children’s rights. Furthermore, the general comment seeks to encourage good practices and highlight positive approaches in the practical implementation of rights for indigenous children.
18. In this context, the Committee also supports the Committee on the Elimination of Racial Discrimination in its call upon States parties to recognize and respect indigenous distinct cultures, history, language and way of life as an enrichment of the State’s cultural identity and to promote its preservation.3
14. Article 30 of the Convention and the right to the enjoyment of culture, religion and language are key elements in this general comment; however the aim is to explore the various provisions which require particular attention in their implementation in relation to indigenous children. Particular emphasis is placed on the interrelationship between relevant provisions, notably with the general principles of the Convention as identified by the Committee, namely, non-discrimination, the best interests of the child, the right to life, survival and development and the right to be heard. 15. The Committee notes that the Convention contains references to both minority and indigenous children. Certain references in this general comment may be relevant for children of minority groups and the Committee may decide in the future to prepare a general comment specifically on the rights of children belonging to minority groups.
ARTICLE 30
AND GENERAL OBLIGATIONS OF STATES 16. The Committee recalls the close linkage between article 30 of the Convention on the Rights of the Child and article 27 of the International Covenant on Civil and Political Rights. Both articles specifically provide for the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language. The right established is conceived as being both individual and collective and is an important recognition of the collective traditions and values in indigenous cultures. The Committee notes that the right to exercise cultural rights among indigenous peoples may be closely associated with the use of traditional territory and the use of its resources.1 17. Although article 30 is expressed in negative terms, it nevertheless recognizes the existence of a “right” and requires that it “shall not be denied”. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. The Committee concurs with the Human Rights Committee that positive measures of protection are required, not only against the acts of the State party itself, 1 Human Rights Committee, general comment No. 23 on article 27, CCPR/C/ Rev.1/Add.5, 1994, paras. 3.2, 7. Recommendations of CRC Day of General Discussion on the Rights of Indigenous Children, 2003, para. 4.
19. The presence of indigenous peoples is established by self-identification as the fundamental criterion for determining their existence.4 There is no requirement for States parties to officially recognize indigenous peoples in order for them to exercise their rights. 20. Based on its reviews of States parties reports, the Committee on the Rights of the Child has observed that in implementing their obligations under the Convention many States parties give insufficient attention to the rights of indigenous children and to promotion of their development. The Committee considers that special measures through legislation and policies for the protection of indigenous children should be undertaken in consultation with the communities concerned5 and with the participation of children in the consultation process, as provided for by article 12 of the Convention. The Committee considers that consultations should be actively carried out by authorities or other entities of States parties in a manner that is culturally appropriate, guarantees availability of information to all parties and ensures interactive communication and dialogue. 21. The Committee urges States parties to ensure that adequate attention is given to article 30 in the implementation of the Convention. States parties should provide detailed information in their periodic reports under the Convention on the special measures undertaken in order to guarantee that indigenous children can enjoy the rights provided in article 30. 22. The Committee underlines that cultural practices provided by article 30 of the Convention must be exercised in accordance with other provisions of the Convention and under no circumstances may be justified if deemed prejudicial to the child’s dignity, health and development.6 Should harmful practices be present, inter alia early marriages and female genital mutilation, the State party should work together with indigenous communities to ensure their eradication. The Committee strongly urges States parties to develop and implement awarenessraising campaigns, education programmes and legislation aimed at changing attitudes and address gender roles and stereotypes that contribute to harmful practices.7 2 Human Rights Committee, general comment No. 23 on article 27, CCPR/C/ Rev.1/Add.5, 1994, para. 6.1. 3 Committee on the Elimination of Racial Discrimination, general recommendation No. 23 on Indigenous Peoples, 1997, contained in A/52/18, Annex V. 4 ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries No. 169, article 1 (2). 5 ILO Convention No. 169, articles 2, 6, 27. 6 UNICEF Innocenti Digest No. 11, Ensuring the Rights of Indigenous Children, 2004, p. 7. 7 CRC, general comment No. 4 on Adolescent Health, 2003, para. 24.
BI A CK N D E X
137
U PV EDR A TED SION in order to implement appropriate positive measures through legislation, resource allocation, policies and programmes.10
GENERAL PRINCIPLES
(ARTS. 2, 3, 6 AND 12 OF THE CONVENTION)
NON-DISCRIMINATION 23. Article 2 sets out the obligation of States parties to ensure the rights of each child within its jurisdiction without discrimination of any kind. Non-discrimination has been identified by the Committee as a general principle of fundamental importance for the implementation of all the rights enshrined in the Convention. Indigenous children have the inalienable right to be free from discrimination. In order to effectively protect children from discrimination, it is a State party obligation to ensure that the principle of non-discrimination is reflected in all domestic legislation and can be directly applied and appropriately monitored and enforced through judicial and administrative bodies. Effective remedies should be timely and accessible. The Committee highlights that the obligations of the State party extend not only to the public but also to the private sector. 24. As previously stated in the Committee’s general comment No. 5 on general measures of implementation, the non-discrimination obligation requires States actively to identify individual children and groups of children the recognition and realization of whose rights may demand special measures. For example, the Committee highlights, in particular, the need for data collection to be disaggregated to enable discrimination or potential discrimination to be identified. Addressing discrimination may furthermore require changes in legislation, administration and resource allocation, as well as educational measures to change attitudes.8 25. The Committee, through its extensive review of State party reports, notes that indigenous children are among those children who require positive measures in order to eliminate conditions that cause discrimination and to ensure their enjoyment of the rights of the Convention on equal level with other children. In particular, States parties are urged to consider the application of special measures in order to ensure that indigenous children have access to culturally appropriate services in the areas of health, nutrition, education, recreation and sports, social services, housing, sanitation and juvenile justice.9 26. Among the positive measures required to be undertaken by States parties is disaggregated data collection and the development of indicators for the purposes of identifying existing and potential areas of discrimination of indigenous children. The identification of gaps and barriers to the enjoyment of the rights of indigenous children is essential 8 CRC, general comment No. 5 on General Measures of Implementation, 2003, para. 12. 9 Recommendations of CRC Day of General Discussion on the Rights of Indigenous Children, 2003, para. 9. 138
27. States parties should ensure that public information and educational measures are taken to address the discrimination of indigenous children. The obligation under article 2 in conjunction with articles 17, 29.1 (d) and 30 of the Convention requires States to develop public campaigns, dissemination material and educational curricula, both in schools and for professionals, focused on the rights of indigenous children and the elimination of discriminatory attitudes and practices, including racism. Furthermore, States parties should provide meaningful opportunities for indigenous and non-indigenous children to understand and respect different cultures, religions, and languages. 28. In their periodic reports to the Committee, States parties should identify measures and programmes undertaken to address discrimination of indigenous children in relation to the Declaration and Programme of Action adopted at the 2001 World Conference against Racism, Discrimination, Xenophobia and Related Intolerance. 11 29. In the design of special measures, States parties should consider the needs of indigenous children who may face multiple facets of discrimination and also take into account the different situation of indigenous children in rural and urban situations. Particular attention should be given to girls in order to ensure that they enjoy their rights on an equal basis as boys. States parties should furthermore ensure that special measures address the rights of indigenous children with disabilities.12
BEST INTERESTS OF THE CHILD 30. The application of the principle of the best interests of the child to indigenous children requires particular attention. The Committee notes that the best interests of the child is conceived both as a collective and individual right, and that the application of this right to indigenous children as a group requires consideration of how the right relates to collective cultural rights. Indigenous children have not always received the distinct consideration they deserve. In some cases, their particular situation has been obscured by other issues of broader concern to indigenous peoples, (including land rights and political representation).13 In the case of children, the best interests of the child cannot be neglected or violated in preference for the best interests of the group. 31. When State authorities including legislative bodies seek to assess the best interests of an indigenous child, they should consider the cultural rights of the indigenous child and his or her need to exercise such rights collectively with 10 Ibid., para. 6. 11 Recommendations of CRC Day of General Discussion on the Rights of Indigenous Children, 2003, para. 12. 12 Convention on the Rights of Persons with Disabilities, preamble. United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, articles 21, 22. 13 UNICEF Innocenti Digest No. 11, Ensuring the Rights of Indigenous Children, 2004, p. 1.
BACK
KEYWORDS INDEX
U PV EDR A TED SION members of their group. As regards legislation, policies and programmes that affect indigenous children in general, the indigenous community should be consulted and given an opportunity to participate in the process on how the best interests of indigenous children in general can be decided in a culturally sensitive way. Such consultations should, to the extent possible, include meaningful participation of indigenous children. 32. The Committee considers there may be a distinction between the best interests of the individual child, and the best interests of children as a group. In decisions regarding one individual child, typically a court decision or an administrative decision, it is the best interests of the specific child that is the primary concern. However, considering the collective cultural rights of the child is part of determining the child’s best interests. 33. The principle of the best interests of the child requires States to undertake active measures throughout their legislative, administrative and judicial systems that would systematically apply the principle by considering the implication of their decisions and actions on children’s rights and interests.14 In order to effectively guarantee the rights of indigenous children such measures would include training and awareness-raising among relevant professional categories of the importance of considering collective cultural rights in conjunction with the determination of the best interests of the child.
stresses the importance of the traditions and cultural values of each person, particularly with reference to the protection and harmonious development of the child. In the case of indigenous children whose communities retain a traditional lifestyle, the use of traditional land is of significant importance to their development and enjoyment of culture.16 States parties should closely consider the cultural significance of traditional land and the quality of the natural environment while ensuring the children’s right to life, survival and development to the maximum extent possible. 36. The Committee reaffirms the importance of the Millennium Development Goals (MDGs) and calls on States to engage with indigenous peoples, including children, to ensure the full realization of the MDGs with respect to indigenous children.
RESPECT FOR THE VIEWS OF THE CHILD
T HE R I G H T T O LI FE , SUR VI V A L A N D D E V ELO P ME NT 34. The Committee notes with concern that disproportionately high numbers of indigenous children live in extreme poverty, a condition which has a negative impact on their survival and development. The Committee is furthermore concerned over the high infant and child mortality rates as well as malnutrition and diseases among indigenous children. Article 4 obliges States parties to address economic, social and cultural rights to the maximum extent of their available resources and where needed with international cooperation. Articles 6 and 27 provide the right of children to survival and development as well as an adequate standard of living. States should assist parents and others responsible for the indigenous child to implement this right by providing culturally appropriate material assistance and support programmes, particularly with regard to nutrition, clothing and housing. The Committee stresses the need for States parties to take special measures to ensure that indigenous children enjoy the right to an adequate standard of living and that these, together with progress indicators, be developed in partnership with indigenous peoples, including children.
37. The Committee considers that, in relation to article 12, there is a distinction between the right of the child as an individual to express his or her opinion and the right to be heard collectively, which allows children as a group to be involved in consultations on matters involving them. 38. With regard to the individual indigenous child, the State party has the obligation to respect the child’s right to express his or her view in all matters affecting him or her, directly or through a representative, and give due weight to this opinion in accordance with the age and maturity of the child. The obligation is to be respected in any judicial or administrative proceeding. Taking into account the obstacles which prevent indigenous children from exercising this right, the State party should provide an environment that encourages the free opinion of the child. The right to be heard includes the right to representation, culturally appropriate interpretation and also the right not to express one’s opinion.
35. The Committee reiterates its understanding of development of the child as set out in its general comment No. 5, as a “holistic concept embracing the child’s physical, mental, spiritual, moral, psychological and social development”.15 The Preamble of the Convention
39. When the right is applied to indigenous children as a group, the State party plays an important role in promoting their participation and should ensure that they are consulted on all matters affecting them. The State party should design special strategies to guarantee that their participation is effective. The State party should ensure that this right is applied in particular in the school environment, alternative care settings and in the community in general. The Committee recommends States parties to work
14 CRC, general comment No. 5 on General Measures of Implementation, 2003, para. 12. 15 Ibid.
16 UNICEF Innocenti Digest No. 11, Ensuring the Rights of Indigenous Children, 2004, p. 8.
BI A CK N D E X
139
U PV EDR A TED SION closely with indigenous children and their communities to develop, implement and evaluate programmes, policies and strategies for implementation of the Convention.
CIVIL RIGHTS
AND FREEDOMS (ARTS. 7, 8, 13-17 AND 37 (A) OF THE CONVENTION)
ACC E S S T O I N FO R MA T I O N 40. The Committee underlines the importance that the media have particular regard for the linguistic needs of indigenous children, in accordance with articles 17 (d) and 30 of the Convention. The Committee encourages States parties to support indigenous children to have access to media in their own languages. The Committee underlines the right of indigenous children to access information, including in their own languages, in order for them to effectively exercise their right to be heard.
45. The Committee draws the attention of States to article 8 (2) of the Convention which affirms that a child who has been illegally deprived of some or all of the elements of his or her identity shall be provided with appropriate assistance and protection in order to re-establish speedily his or her identity. The Committee encourages States parties to bear in mind article 8 of the United Nations Declaration on the Rights of Indigenous Peoples which sets out that effective mechanisms should be provided for prevention of, and redress for, any action which deprives indigenous peoples, including children, of their ethnic identities.
FAMILY ENVIRONMENT
BIRTH REGISTRATION, NATIONALITY AND ALTERNATIVE CARE (ARTS. 5, 18 (PARAS. 1-2), 9-11, 19-21, 25, 27 (PARA. 4) AND IDENTITY AND 39 OF THE CONVENTION) 41. States parties are obliged to ensure that all children are registered immediately after birth and that they acquire a nationality. Birth registration should be free and universally accessible. The Committee is concerned that indigenous children, to a greater extent than non-indigenous children, remain without birth registration and at a higher risk of being stateless. 42. Therefore, States parties should take special measures in order to ensure that indigenous children, including those living in remote areas, are duly registered. Such special measures, to be agreed following consultation with the communities concerned, may include mobile units, periodic birth registration campaigns or the designation of birth registration offices within indigenous communities to ensure accessibility. 43. States parties should ensure that indigenous communities are informed about the importance of birth registration and of the negative implications of its absence on the enjoyment of other rights for non-registered children. States parties should ensure that information to this effect is available to indigenous communities in their own languages and that public awareness campaigns are undertaken in consultation with the communities concerned.17
140
46. Article 5 of the Convention requires States parties to respect the rights, responsibilities and duties of parents or where applicable, the members of the extended family or community to provide, in a manner consistent with the evolving capacities of all children, appropriate direction and guidance in the exercise by the child of the rights recognized in the Convention. States parties should ensure effective measures are implemented to safeguard the integrity of indigenous families and communities by assisting them in their child-rearing responsibilities in accordance with articles 3, 5, 18, 25 and 27 (3) of the Convention.18 47. States parties should, in cooperation with indigenous families and communities, collect data on the family situation of indigenous children, including children in foster care and adoption processes. Such information should be used to design policies relating to the family environment and alternative care of indigenous children in a culturally sensitive way. Maintaining the best interests of the child and the integrity of indigenous families and communities should be primary considerations in development, social services, health and education programmes affecting indigenous children.19
44. Furthermore, taking into account articles 8 and 30 of the Convention, States parties should ensure that indigenous children may receive indigenous names of their parents’ choice in accordance with their cultural traditions and the right to preserve his or her identity. States parties should put in place national legislation that provides indigenous parents with the possibility of selecting the name of their preference for their children.
48. Furthermore, States should always ensure that the principle of the best interests of the child is the paramount consideration in any alternative care placement of indigenous children and in accordance with article 20 (3) of the Convention pay due regard to the desirability of continuity in the child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. In States parties where indigenous children are overrepresented among children separated from their family environment,
17 UNICEF Innocenti Digest No. 11, Ensuring the Rights of Indigenous Children, 2004, p. 9.
18 Recommendations of CRC Day of General Discussion on the Rights of Indigenous Children, 2003, para. 17. 19 Ibid.
BACK
KEYWORDS INDEX
U PV EDR A TED SION specially targeted policy measures should be developed in consultation with indigenous communities in order to reduce the number of indigenous children in alternative care and prevent the loss of their cultural identity. Specifically, if an indigenous child is placed in care outside their community, the State party should take special measures to ensure that the child can maintain his or her cultural identity.
BASIC HEALTH
AND WELFARE (ARTS. 6, 18 (PARA. 3), 23, 24, 26, 27 (PARAS. 1-3) OF THE CONVENTION) 49. States parties shall ensure that all children enjoy the highest attainable standard of health and have access to health-care service. Indigenous children frequently suffer poorer health than non-indigenous children due to inter alia inferior or inaccessible health services. The Committee notes with concern, on the basis of its reviews of States parties’ reports, that this applies both to developing and developed countries. 50. The Committee urges States parties to take special measures to ensure that indigenous children are not discriminated against enjoying the highest attainable standard of health. The Committee is concerned over the high rates of mortality among indigenous children and notes that States parties have a positive duty to ensure that indigenous children have equal access to health services and to combat malnutrition as well as infant, child and maternal mortality. 51. States parties should take the necessary steps to ensure ease of access to health-care services for indigenous children. Health services should to the extent possible be community based and planned and administered in cooperation with the peoples concerned.20 Special consideration should be given to ensure that health-care services are culturally sensitive and that information about these is available in indigenous languages. Particular attention should be given to ensuring access to health care for indigenous peoples who reside in rural and remote areas or in areas of armed conflict or who are migrant workers, refugees or displaced. States parties should furthermore pay special attention to the needs of indigenous children with disabilities and ensure that relevant programmes and policies are culturally sensitive.21 52. Health-care workers and medical staff from indigenous communities play an important role by serving as a bridge between traditional medicine and conventional medical services and preference should be given to employment of local indigenous community workers.22 States parties should encourage the role of these workers by providing them with the necessary means and training in order to enable that conventional medicine be used by indigenous communities in a way that is mindful of their culture and traditions. In this context, the Committee recalls article 25 20 ILO Convention No. 169, article 25 (1, 2). 21 CRC, general comment No. 9 on The Rights of Children with Disabilities, 2006. 22 ILO Convention No. 169, article 25 (3).
(2) of the ILO Convention No. 169 and articles 24 and 31 of the United Nations Declaration on the Rights of Indigenous Peoples on the right of indigenous peoples to their traditional medicines.23 53. States should take all reasonable measures to ensure that indigenous children, families and their communities receive information and education on issues relating to health and preventive care such as nutrition, breastfeeding, pre- and postnatal care, child and adolescent health, vaccinations, communicable diseases (in particular HIV/ AIDS and tuberculosis), hygiene, environmental sanitation and the dangers of pesticides and herbicides. 54. Regarding adolescent health, States parties should consider specific strategies in order to provide indigenous adolescents with access to sexual and reproductive information and services, including on family planning and contraceptives, the dangers of early pregnancy, the prevention of HIV/AIDS and the prevention and treatment of sexually transmitted infections (STIs). The Committee recommends States parties to take into account its general comments No. 3 on HIV/AIDS and the rights of the child (2003) and No. 4 on adolescent health (2003) for this purpose.24 55. In certain States parties suicide rates for indigenous children are significantly higher than for non-indigenous children. Under such circumstances, States parties should design and implement a policy for preventive measures and ensure that additional financial and human resources are allocated to mental health care for indigenous children in a culturally appropriate manner, following consultation with the affected community. In order to analyse and combat the root causes, the State party should establish and maintain a dialogue with the indigenous community.
ED U CATIO N
(ARTS. 28, 29 AND 31 OF THE CONVENTION) 56. Article 29 of the Convention sets out that the aims of education for all children should be directed to, among other objectives, the development of respect for the child’s cultural identity, language and values and for civilizations different from his or her own. Further objectives include the preparation of the child for responsible life in a free society, in the spirit of understanding peace, tolerance, equality of sexes and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin. The aims of education apply to education for all children and States should ensure these are adequately reflected in the curricula, content of materials, teaching methods and policies. States are encouraged to refer to the Committee’s general comment No. 1 on the aims of education for further guidance.25
23 United Nations Declaration on the Rights of Indigenous Peoples, A/ RES/61/295, articles 24, 31. 24 CRC, general comment No. 3 on HIV/AIDS and the Rights of the Child, 2003 and general comment No. 4 on Adolescent Health, 2003. 25 CRC, general comment No. 1 on the Aims of Education, 2001.
BI A CK N D E X
141
U PV EDR A TED SION
57. The education of indigenous children contributes both to their individual and community development as well as to their participation in the wider society. Quality education enables indigenous children to exercise and enjoy economic, social and cultural rights for their personal benefit as well as for the benefit of their community. Furthermore, it strengthens children’s ability to exercise their civil rights in order to influence political policy processes for improved protection of human rights. Thus, the implementation of the right to education of indigenous children is an essential means of achieving individual empowerment and self-determination of indigenous peoples. 58. In order to ensure that the aims of education are in line with the Convention, States parties are responsible for protecting children from all forms of discrimination as set out in article 2 of the Convention and for actively combating racism. This duty is particularly pertinent in relation to indigenous children. In order to effectively implement this obligation, States parties should ensure that the curricula, educational materials and history textbooks provide a fair, accurate and informative portrayal of the societies and cultures of indigenous peoples.26 Discriminatory practices, such as restrictions on the use of cultural and traditional dress, should be avoided in the school setting. 59. Article 28 of the Convention sets out that States parties shall ensure that primary education is compulsory and available to all children on the basis of equal opportunity. States parties are encouraged to make secondary and vocational education available and accessible to every child. However, in practice, indigenous children are less likely to be enrolled in school and continue to have higher drop out and illiteracy rates than non-indigenous children. Most indigenous children have reduced access to education due to a variety of factors including insufficient educational facilities and teachers, direct or indirect costs for education as well as a lack of culturally adjusted and bilingual curricula in accordance with article 30. Furthermore, indigenous children are frequently confronted with discrimination and racism in the school setting. 60. In order for indigenous children to enjoy their right to education on equal footing with nonindigenous children, States parties should ensure a range of special measures to this effect. States parties should allocate targeted financial, material and human resources in order to implement policies and programmes which specifically seek to improve the access to education for indigenous children. As established by article 27 of the ILO Convention No. 169, education programmes and services should be developed and implemented in cooperation with the peoples concerned to address their specific needs. Furthermore, governments should recognize the right of indigenous peoples to establish their own educational institutions and facilities, provided that such institutions meet minimum standards established by the competent authority in consultation with these peoples.27 States should 26 ILO Convention No. 169, article 31, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, article 15. 27 ILO Convention No. 169, article 27. 142
undertake all reasonable efforts to ensure that indigenous communities are aware of the value and importance of education and of the significance of community support for school enrolment. 61. States parties should ensure that school facilities are easily accessible where indigenous children live. If required, States parties should support the use of media, such as radio broadcasts and long distance education programmes (internet-based) for educational purposes and establish mobile schools for indigenous peoples who practice nomadic traditions. The school cycle should take into account and seek to adjust to cultural practices as well as agricultural seasons and ceremonial periods. States parties should only establish boarding schools away from indigenous communities when necessary as this may be a disincentive for the enrolment of indigenous children, especially girls. Boarding schools should comply with culturally sensitive standards and be monitored on a regular basis. Attempts should also be made to ensure that indigenous children living outside their communities have access to education in a manner which respects their culture, languages and traditions. 62. Article 30 of the Convention establishes the right of the indigenous child to use his or her own language. In order to implement this right, education in the child’s own language is essential. Article 28 of ILO Convention No. 169 affirms that indigenous children shall be taught to read and write in their own language besides being accorded the opportunity to attain fluency in the official languages of the country.28 Bilingual and intercultural curricula are important criteria for the education of indigenous children. Teachers of indigenous children should to the extent possible be recruited from within indigenous communities and given adequate support and training. 63. With reference to article 31 of the Convention, the Committee notes the many positive benefits of participation in sports, traditional games, physical education, and recreational activities and calls on States parties to ensure that indigenous children enjoy the effective exercise of these rights.
SPECIAL PROTECTION MEASURES (ARTS. 22, 30, 38, 39, 40, 37 (B)(D), 32-36 OF THE CONVENTION)
CHILDREN IN ARMED CONFLICT AND REFUGEE CHILDREN 64. Through its periodic reviews of States parties’ reports, the Committee has concluded that indigenous children are particularly vulnerable in situations of armed conflict or in situations of internal unrest. Indigenous communities often reside in areas which are coveted for their natural 28 ILO Convention No. 169, article 28.
BACK
KEYWORDS INDEX
U PV EDR A TED SION resources or that, because of remoteness, serve as a base for non-State armed groups. In other situations, indigenous communities reside in the vicinity of borders or frontiers which are disputed by States.29 65. Indigenous children in such circumstances have been, and continue to face risks of being, victims of attacks against their communities, resulting in death, rape and torture, displacement, enforced disappearances, the witnessing of atrocities and the separation from parents and community. Targeting of schools by armed forces and groups has denied indigenous children access to education. Furthermore, indigenous children have been recruited by armed forces and groups and forced to commit atrocities, sometimes even against their own communities. 66. Article 38 of the Convention obliges States parties to ensure respect for the rules of humanitarian law, to protect the civilian population and to take care of children who are affected by armed conflict. States parties should pay particular attention to the risks indigenous children face in hostilities and take maximum preventive measures in consultation with the communities concerned. Military activities on indigenous territories should be avoided to the extent possible, the Committee recalls article 30 of the United Nations Declaration on the Rights of Indigenous Peoples in this regard.30 States parties should not require military conscription of indigenous children under the age of 18 years. States parties are encouraged to ratify and implement the Optional Protocol on the Involvement of Children in Armed Conflict. 67. Indigenous children who have been victims of recruitment in armed conflict should be provided with the necessary support services for reintegration into their families and communities. Consistent with article 39 of the Convention, States parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of exploitation, abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment or armed conflicts. In the case of indigenous children, this should be done giving due consideration to the child’s cultural and linguistic background. 68. Indigenous children who have been displaced or become refugees should be given special attention and humanitarian assistance in a culturally sensitive manner. Safe return and restitution of collective and individual property should be promoted.
ECONOMIC EXPLOITATION 69. Article 32 of the Convention provides that all children should be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. In addition, ILO Convention No. 138
(Minimum Age Convention) and Convention No. 182 (Worst Forms of Child Labour Convention) set parameters for distinguishing child labour that needs abolition, on the one hand, and acceptable work done by children, including such activities that allow indigenous children to acquire livelihood skills, identity and culture, on the other. Child labour is work that deprives children of their childhood, their potential and dignity and that is harmful to their physical and mental development.31 70. Provisions in the Convention on the Rights of the Child refer to the use of children in illicit production and trafficking of drugs (art. 33), sexual exploitation (art. 34), trafficking in children (art. 35), children in armed conflicts (art. 38). These provisions are closely related to the definition of the worst forms of child labour under ILO Convention No. 182. The Committee notes with grave concern that indigenous children are disproportionately affected by poverty and at particular risk of being used in child labour, especially its worst forms, such as slavery, bonded labour, child trafficking, including for domestic work, use in armed conflict, prostitution and hazardous work. 71. The prevention of exploitative child labour among indigenous children (as in the case of all other children) requires a rights-based approach to child labour and is closely linked to the promotion of education. For the effective elimination of exploitative child labour among indigenous communities, States parties must identify the existing barriers to education and the specific rights and needs of indigenous children with respect to school education and vocational training. This requires that special efforts be taken to maintain a dialogue with indigenous communities and parents regarding the importance and benefits of education. Measures to combat exploitative child labour furthermore require analysis of the structural root causes of child exploitation, data collection and the design and implementation of prevention programmes, with adequate allocation of financial and human resources by the State party, to be carried out in consultation with indigenous communities and children.
SEXUAL EXPLOITATION AND TRAFFICKING 72. Articles 34 and 35 of the Convention with consideration to the provisions of article 20, call on States to ensure that children are protected against sexual exploitation and abuse as well as the abduction, sale or traffic of children for any purposes. The Committee is concerned that indigenous children whose communities are affected by poverty and urban migration are at a high risk of becoming victims of sexual exploitation and trafficking. Young girls, particularly 31 ILO, Handbook on Combating Child Labour among Indigenous and Tribal Peoples, 2006, p. 9.
29 UNICEF Innocenti Digest No. 11, Ensuring the Rights of Indigenous Children, 2004, p. 13. 30 United Nations Declaration on the Rights of Indigenous Peoples, A/ RES/61/295, article 30.
BI A CK N D E X
143
U PV EDR A TED SION
their families and communities. States should provide adequate resources to juvenile justice systems, including those developed and implemented by indigenous peoples. those not registered at birth, are especially vulnerable. In order to improve the protection of all children, including indigenous, States parties are encouraged to ratify and implement the Optional Protocol on the sale of children, child prostitution and child pornography. 73. States should, in consultation with indigenous communities, including children, design preventive measures and allocate targeted financial and human resources for their implementation. States should base preventive measures on studies which include documentation of the patterns of violations and analysis of root causes.
JUVENILE JUSTICE 74. Articles 37 and 40 of the Convention ensure the rights of children within, and in interaction with, State judicial systems. The Committee notes with concern that incarceration of indigenous children is often disproportionately high and in some instances may be attributed to systemic discrimination from within the justice system and/or society.32 To address these high rates of incarceration, the Committee draws the attention of States parties to article 40 (3) of the Convention requiring States to undertake measures to deal with children alleged as, accused of, or recognized as having infringed the penal law without resorting to judicial proceedings, whenever appropriate. The Committee, in its general comment No. 10 on children’s rights in juvenile justice (2007) and in its concluding observations, has consistently affirmed that the arrest, detention or imprisonment of a child may be used only as a measure of last resort.33 75. States parties are encouraged to take all appropriate measures to support indigenous peoples to design and implement traditional restorative justice systems as long as those programmes are in accordance with the rights set out in the Convention, notably with the best interests of the child.34 The Committee draws the attention of States parties to the United Nations Guidelines for the Prevention of Juvenile Delinquency, which encourage the development of community programmes for the prevention of juvenile delinquency.35 States parties should seek to support, in consultation with indigenous peoples, the development of community-based policies, programmes and services which consider the needs and culture of indigenous children, 32 CRC, general comment No. 1 on Children’s Rights in Juvenile Justice, 2007, para. 6. 33 Ibid. para. 23. 34 Recommendations of Day of General Discussion on the Rights of Indigenous Children, 2003, para. 13. 35 United Nations Guidelines for the Prevention of Juvenile Delinquency, “the Riyadh Guidelines”, 1990. 144
76. States parties are reminded that pursuant to article 12 of the Convention, all children should have an opportunity to be heard in any judicial or criminal proceedings affecting them, either directly or through a representative. In the case of indigenous children, States parties should adopt measures to ensure that an interpreter is provided free of charge if required and that the child is guaranteed legal assistance, in a culturally sensitive manner. 77. Professionals involved in law enforcement and the judiciary should receive appropriate training on the content and meaning of the provisions of the Convention and its Optional Protocols, including the need to adopt special protection measures for indigenous children and other specific groups.36
STATES PARTIES’
OBLIGATIONS AND MONITORING OF THE IMPLEMENTATION OF THE CONVENTION 78. The Committee reminds States parties that ratification of the Convention on the Rights of the Child obliges States parties to take action to ensure the realization of all rights in the Convention for all children within their jurisdiction. The duty to respect and protect requires each State party to ensure that the exercise of the rights of indigenous children is fully protected against any acts of the State party by its legislative, judicial or administrative authorities or by any other entity or person within the State party. 79. Article 3 of the Convention requires States parties to ensure that in all actions concerning children, the best interests of the child shall be a primary consideration. Article 4 of the Convention requires States parties to undertake measures to implement the Convention to the maximum extent of their available resources. Article 42 sets out that States parties are further required to ensure that children and adults are provided information on the principles and provisions of the Convention. 80. In order to effectively implement the rights of the Convention for indigenous children, States parties need to adopt appropriate legislation in accordance with the Convention. Adequate resources should be allocated and special measures adopted in a range of areas in order to effectively ensure that indigenous children enjoy their rights on an equal level with nonindigenous children. Further efforts should be taken to collect and disaggregate data and develop indicators to evaluate the degree of implementation of the rights of indigenous children. In 36 CRC, general comment No. 1 on Children’s Rights in Juvenile Justice, 2007, para. 97.
BACK
KEYWORDS INDEX
U PV EDR A TED SION order to develop policy and programming efforts in a culturally sensitive manner, States parties should consult with indigenous communities and directly with indigenous children. Professionals working with indigenous children should be trained on how consideration should be given to cultural aspects of children’s rights. 81. The Committee calls for States parties to, when applicable, better integrate information in their periodic reports to the Committee on the implementation of indigenous children’s rights and on the adoption of special measures in this regard. Furthermore, the Committee requests States parties to strengthen efforts to translate and disseminate information about the Convention and its Optional Protocols and the reporting process among indigenous communities and children, in order for them to actively participate in the monitoring process. Furthermore, indigenous communities are encouraged to utilize the Convention as an opportunity to assess the implementation of the rights of their children. 82. Finally, the Committee urges States parties to adopt a rights-based approach to indigenous children based on the Convention and other relevant international standards, such as ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples. In order to guarantee effective monitoring of the implementation of the rights of indigenous children, States parties are urged to strengthen direct cooperation with indigenous communities and, if required, seek technical cooperation from international agencies, including United Nations entities. Empowerment of indigenous children and the effective exercise of their rights to culture, religion and language provide an essential foundation of a culturally diverse State in harmony and compliance with its human rights obligations.
BI A CK N D E X
145
number 12
U PV EDR A TED SION
ARTICLE 12 OF THE CONVENTION ON THE RIGHTS OF THE CHILD PROVIDES: “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
IN T R O DUC T I ON 1. Article 12 of the Convention on the Rights of the Child (the Convention) is a unique provision in a human rights treaty; it addresses the legal and social status of children, who, on the one hand lack the full autonomy of adults but, on the other, are subjects of rights. Paragraph 1 assures, to every child capable of forming his or her own views, the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with age and maturity. Paragraph 2 states, in particular, that the child shall be afforded the right to be heard in any judicial or administrative proceedings affecting him or her. 2. The right of all children to be heard and taken seriously constitutes one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 12 as one of the four general principles of the Convention, the others being the right to non-discrimination, the right to life and development, and the primary consideration of the child’s best interests, which highlights the fact that this article establishes not only a right in itself, but should also be considered in the interpretation and implementation of all other rights. 3. Since the adoption of the Convention in 1989, considerable progress has been achieved at the local, national, regional and global levels in the development of legislation, policies and methodologies to promote the implementation of article 12. A widespread practice has emerged in recent years, which has been broadly conceptualized as “participation”, although this term itself does not appear in the text of article 12. This term has evolved and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes. 4. States parties reaffirmed their commitment to the realization of article 12 at the twentyseventh special session
148
of the General Assembly on children in 2002.1 However, the Committee notes that, in most societies around the world, implementation of the child’s right to express her or his view on the wide range of issues that affect her or him, and to have those views duly taken into account, continues to be impeded by many long-standing practices and attitudes, as well as political and economic barriers. While difficulties are experienced by many children, the Committee particularly recognizes that certain groups of children, including younger boys and girls, as well as children belonging to marginalized and disadvantaged groups, face particular barriers in the realization of this right. The Committee also remains concerned about the quality of many of the practices that do exist. There is a need for a better understanding of what article 12 entails and how to fully implement it for every child. 5. In 2006, the Committee held a day of general discussion on the right of the child to be heard in order to explore the meaning and significance of article 12, its linkages to other articles, and the gaps, good practices and priority issues that need to be addressed in order to further the enjoyment of this right.2 The present general comment arises from the exchange of information which took place on that day, including with children, the accumulated experience of the Committee in reviewing States parties’ reports, and the very significant expertise and experience of translating the right embodied in article 12 into practice by governments, non-governmental organizations (NGOs), community organizations, development agencies, and children themselves. 6. The present general comment will first present a legal analysis of the two paragraphs of article 12 and will then explain the requirements to fully realize this right, including in judicial and administrative proceedings in particular (sect. A). In section B, the connection of article 12 with the three other general principles of the Convention, as well as its relation to other articles, will be discussed. The requirements and the impact of the child’s right to be heard in different situations and settings are outlined 1 Resolution S-27/2 “A world fit for children”, adopted by the General Assembly in 2002. 2 See the recommendations of the day of general discussion in 2006 on the right of the child to be heard, available at: h t t p : / / w w w 2 . o h c h r. o r g / e n g l i s h / b o d i e s / c r c / d o c s / d i s c u s s i o n / Final_Recommendations_after_DGD.doc.
BACK
KEYWORDS INDEX
U PV EDR A TED SION in section C. Section D sets out the basic requirements for the implementation of this right, and the conclusions are presented in section E. 7. The Committee recommends that States parties widely disseminate the present general comment within government and administrative structures as well as to children and civil society. This will necessitate translating it into the relevant languages, making child-friendly versions available, holding workshops and seminars to discuss its implications and how best to implement it, and incorporating it into the training of all professionals working for and with children.
O B JEC T I VES 8. The overall objective of the general comment is to support States parties in the effective implementation of article 12. In so doing it seeks to: - Strengthen understanding of the meaning of article 12 and its implications for governments, stakeholders, NGOs and society at large - Elaborate the scope of legislation, policy and practice necessary to achieve full implementation of article 12 - Highlight the positive approaches in implementing article 12, benefitting from the monitoring experience of the Committee - Propose basic requirements for appropriate ways to give due weight to children’s views in all matters that affect them
THE RIGHT TO BE HEARD: A RIGHT OF THE INDIVIDUAL CHILD AND A RIGHT OF GROUPS OF CHILDREN
9. The general comment is structured according to the distinction made by the Committee between the right to be heard of an individual child and the right to be heard as applied to a group of children (e.g. a class of schoolchildren, the children in a neighbourhood, the children of a country, children with disabilities, or girls). This is a relevant distinction because the Convention stipulates that States parties must assure the right of the child to be heard according to the age and maturity of the child (see the following legal analysis of paragraphs 1 and 2 of article 12). 10. The conditions of age and maturity can be assessed when an individual child is heard and also when a group of children chooses to express its views. The task of assessing a child’s age and maturity is facilitated when the group in question is a component of an enduring structure, such as a family, a class of schoolchildren or the residents of a particular neighbourhood, but is made more difficult
when children express themselves collectively. Even when confronting difficulties in assessing age and maturity, States parties should consider children as a group to be heard, and the Committee strongly recommends that States parties exert all efforts to listen to or seek the views of those children speaking collectively. 11. States parties should encourage the child to form a free view and should provide an environment that enables the child to exercise her or his right to be heard. 12. The views expressed by children may add relevant perspectives and experience and should be considered in decision-making, policymaking and preparation of laws and/or measures as well as their evaluation. 13. These processes are usually called participation. The exercise of the child’s or children’s right to be heard is a crucial element of such processes. The concept of participation emphasizes that including children should not only be a momentary act, but the starting point for an intense exchange between children and adults on the development of policies, programmes and measures in all relevant contexts of children’s lives. 14. In section A (Legal analysis) of the general comment, the Committee deals with the right to be heard of the individual child. In section C (The implementation of the right to be heard in different settings and situations), the Committee considers the right to be heard of both the individual child and children as a group.
A. LEGAL ANALYSIS 15. Article 12 of the Convention establishes the right of every child to freely express her or his views, in all matters affecting her or him, and the subsequent right for those views to be given due weight, according to the child’s age and maturity. This right imposes a clear legal obligation on States parties to recognize this right and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child. 16. The child, however, has the right not to exercise this right. Expressing views is a choice for the child, not an obligation. States parties have to ensure that the child receives all necessary information and advice to make a decision in favour of her or his best interests. 17. Article 12 as a general principle provides that States parties should strive to ensure that the interpretation and implementation of all other rights incorporated in the Convention are guided by it.3 18. Article 12 manifests that the child holds rights which have an influence on her or his life, and not only rights derived from her or his vulnerability (protection) 3 See the Committee’s general comment No. 5 (2003) on general measures of implementation for the Convention on the Rights of the Child (CRC/GC/2003/5).
BI A CK N D E X
149
U PV EDR A TED SION or dependency on adults (provision).4 The Convention recognizes the child as a subject of rights, and the nearly universal ratification of this international instrument by States parties emphasizes this status of the child, which is clearly expressed in article 12.
1. LITERAL ANALYSIS OF ARTICLE 12 a) Paragraph 1 of article 12 i) “Shall assure” 19. Article 12, paragraph 1, provides that States parties “shall assure” the right of the child to freely express her or his views. “Shall assure” is a legal term of special strength, which leaves no leeway for State parties’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children. This obligation contains two elements in order to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views.
Second, it is not necessary that the child has comprehensive knowledge of all aspects of the matter affecting her or him, but that she or he has sufficient understanding to be capable of appropriately forming her or his own views on the matter. Third, States parties are also under the obligation to ensure the implementation of this right for children experiencing difficulties in making their views heard. For instance, children with disabilities should be equipped with, and enabled to use, any mode of communication necessary to facilitate the expression of their views. Efforts must also be made to recognize the right to expression of views for minority, indigenous and migrant children and other children who do not speak the majority language. Lastly, States parties must be aware of the potential negative consequences of an inconsiderate practice of this right, particularly in cases involving very young children, or in instances where the child has been a victim of a criminal offence, sexual abuse, violence, or other forms of mistreatment. States parties must undertake all necessary measures to ensure that the right to be heard is exercised ensuring full protection of the child.
ii)“Capable of forming his or her own views” 20. States parties shall assure the right to be heard to every child “capable of forming his or her own views”. This phrase should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity. 21. The Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him. In this respect, the Committee underlines the following: First, in its recommendations following the day of general discussion on implementing child rights in early childhood in 2004, the Committee underlined that the concept of the child as rights holder is “... anchored in the child’s daily life from the earliest stage”.5 Research shows that the child is able to form views from the youngest age, even when she or he may be unable to express them verbally.6 Consequently, full implementation of article 12 requires recognition of, and respect for, non-verbal forms of communication including play, body language, facial expressions, and drawing and painting, through which very young children demonstrate understanding, choices and preferences.
iii) “The right to express those views freely” 22. The child has the right “to express those views freely”. “Freely” means that the child can express her or his views without pressure and can choose whether or not she or he wants to exercise her or his right to be heard. “Freely” also means that the child must not be manipulated or subjected to undue influence or pressure. “Freely” is further intrinsically related to the child’s “own” perspective: the child has the right to express her or his own views and not the views of others. 23. States parties must ensure conditions for expressing views that account for the child’s individual and social situation and an environment in which the child feels respected and secure when freely expressing her or his opinions. 24. The Committee emphasizes that a child should not be interviewed more often than necessary, in particular when harmful events are explored. The “hearing” of a child is a difficult process that can have a traumatic impact on the child. 25. The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian. The child must also be informed about the conditions under which she or he will be asked to express her or his views. This right to information is essential, because it is the precondition of the child’s clarified decisions. iv) “In all matters affecting the child”
4 The Convention is commonly referred to by the three “ps”: provision, protection and participation. 5 CRC/C/GC/7/Rev.1, para. 14. 6 Cf. Lansdown G., “The evolving capacities of the child”, Innocenti Research Centre, UNICEF/Save the Children, Florence (2005). 150
26. States parties must assure that the child is able to express her or his views “in all matters affecting” her or him. This represents a second qualification of this right: the
BACK
KEYWORDS INDEX
U PV EDR A TED SION child must be heard if the matter under discussion affects the child. This basic condition has to be respected and understood broadly. 27. The Open-ended Working Group established by the Commission on Human Rights, which drafted the text of the Convention, rejected a proposal to define these matters by a list limiting the consideration of a child’s or children’s views. Instead, it was decided that the right of the child to be heard should refer to “all matters affecting the child”. The Committee is concerned that children are often denied the right to be heard, even though it is obvious that the matter under consideration is affecting them and they are capable of expressing their own views with regard to this matter. While the Committee supports a broad definition of “matters”, which also covers issues not explicitly mentioned in the Convention, it recognizes the clause “affecting the child”, which was added in order to clarify that no general political mandate was intended. The practice, however, including the World Summit for Children, demonstrates that a wide interpretation of matters affecting the child and children helps to include children in the social processes of their community and society. Thus, States parties should carefully listen to children’s views wherever their perspective can enhance the quality of solutions. v) “Being given due weight in accordance with the age and maturity of the child” 28. The views of the child must be “given due weight in accordance with the age and maturity of the child”. This clause refers to the capacity of the child, which has to be assessed in order to give due weight to her or his views, or to communicate to the child the way in which those views have influenced the outcome of the process. Article 12 stipulates that simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views. 29. By requiring that due weight be given in accordance with age and maturity, article 12 makes it clear that age alone cannot determine the significance of a child’s views. Children’s levels of understanding are not uniformly linked to their biological age. Research has shown that information, experience, environment, social and cultural expectations, and levels of support all contribute to the development of a child’s capacities to form a view. For this reason, the views of the child have to be assessed on a case-by-case examination. 30. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child. Maturity is difficult to define; in the context of article 12, it is the capacity of a child to express her or his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child. 31. Consideration needs to be given to the notion of the evolving capacities of the child, and direction and guidance from parents (see para. 84 and sect. C below).
b) Paragraph 2 of article 12 i) The right “to be heard in any judicial and administrative proceedings affecting the child” 32. Article 12, paragraph 2, specifies that opportunities to be heard have to be provided in particular “in any judicial and administrative proceedings affecting the child”. The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, children in conflict with the law, child victims of physical or psychological violence, sexual abuse or other crimes, health care, social security, unaccompanied children, asylum-seeking and refugee children, and victims of armed conflict and other emergencies. Typical administrative proceedings include, for example, decisions about children’s education, health, environment, living conditions, or protection. Both kinds of proceedings may involve alternative dispute mechanisms such as mediation and arbitration. 33. The right to be heard applies both to proceedings which are initiated by the child, such as complaints against ill-treatment and appeals against school exclusion, as well as to those initiated by others which affect the child, such as parental separation or adoption. States parties are encouraged to introduce legislative measures requiring decision makers in judicial or administrative proceedings to explain the extent of the consideration given to the views of the child and the consequences for the child. 34. A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. Proceedings must be both accessible and childappropriate. Particular attention needs to be paid to the provision and delivery of childfriendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate waiting rooms. ii) “Either directly, or through a Representative or an appropriate body” 35. After the child has decided to be heard, he or she will have to decide how to be heard: “either directly, or through a representative or appropriate body”. The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. 36. The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined by the child (or by the appropriate authority as necessary)
BI A CK N D E X
151
U PV EDR A TED SION b) The hearing
according to her or his particular situation. Representatives must have sufficient knowledge and understanding of the various aspects of the decision-making process and experience in working with children. 37. The representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons (parent(s)), institutions or bodies (e.g. residential home, administration or society). Codes of conduct should be developed for representatives who are appointed to represent the child’s views. iii) “In a manner consistent with the procedural rules of national law” 38. The opportunity for representation must be “in a manner consistent with the procedural rules of national law”. This clause should not be interpreted as permitting the use of procedural legislation which restricts or prevents enjoyment of this fundamental right. On the contrary, States parties are encouraged to comply with the basic rules of fair proceedings, such as the right to a defence and the right to access one’s own files. 39. When rules of procedure are not adhered to, the decision of the court or the administrative authority can be challenged and may be overturned, substituted, or referred back for further juridical consideration. 2. STEPS FOR THE IMPLEMENTATION OF THE CHILD’S RIGHT TO BE HEARD 40. Implementation of the two paragraphs of article 12 requires five steps to be taken in order to effectively realize the right of the child to be heard whenever a matter affects a child or when the child is invited to give her or his views in a formal proceeding as well as in other settings. These requirements have to be applied in a way which is appropriate for the given context. a) Preparation 41. Those responsible for hearing the child have to ensure that the child is informed about her or his right to express her or his opinion in all matters affecting the child and, in particular, in any judicial and administrative decisionmaking processes, and about the impact that his or her expressed views will have on the outcome. The child must, furthermore, receive information about the option of either communicating directly or through a representative. She or he must be aware of the possible consequences of this choice. The decision maker must adequately prepare the child before the hearing, providing explanations as to how, when and where the hearing will take place and who the participants will be, and has to take account of the views of the child in this regard. 152
42. The context in which a child exercises her or his right to be heard has to be enabling and encouraging, so that the child can be sure that the adult who is responsible for the hearing is willing to listen and seriously consider what the child has decided to communicate. The person who will hear the views of the child can be an adult involved in the matters affecting the child (e.g. a teacher, social worker or caregiver), a decision maker in an institution (e.g. a director, administrator or judge), or a specialist (e.g. a psychologist or physician). 43. Experience indicates that the situation should have the format of a talk rather than a onesided examination. Preferably, a child should not be heard in open court, but under conditions of confidentiality. c) Assessment of the capacity of the child 44. The child’s views must be given due weight, when a case-by-case analysis indicates that the child is capable of forming her or his own views. If the child is capable of forming her or his own views in a reasonable and independent manner, the decision maker must consider the views of the child as a significant factor in the settlement of the issue. Good practice for assessing the capacity of the child has to be developed. d) Information about the weight given to the views of the child (feedback) 45. Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously. The information may prompt the child to insist, agree or make another proposal or, in the case of a judicial or administrative procedure, file an appeal or a complaint. e) Complaints, remedies and redress 46. Legislation is needed to provide children with complaint procedures and remedies when their right to be heard and for their views to be given due weight is disregarded and violated.7 Children should have the possibility of addressing an ombudsman or a person of a comparable role in all children’s institutions, inter alia, in schools and day-care centres, in order to voice their complaints. Children should know who these persons are and how to access them. In the case of family conflicts about consideration of children’s views, a child should be able to turn to a person in the youth services of the community. 47. If the right of the child to be heard is breached with regard to judicial and administrative proceedings (art. 12, para. 2), the child must have access to appeals and complaints procedures which provide remedies for rights violations. Complaints procedures must provide reliable mechanisms to ensure that children are confident that 7 See the Committee’s general comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child, para. 24.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
using them will not expose them to risk of violence or punishment. 3. OBLIGATIONS OF STATES PARTIES a) Core obligations of States parties 48. The child’s right to be heard imposes the obligation on States parties to review or amend their legislation in order to introduce mechanisms providing children with access to appropriate information, adequate support, if necessary, feedback on the weight given to their views, and procedures for complaints, remedies or redress. 49. In order to fulfil these obligations, States parties should adopt the following strategies: - Review and withdraw restrictive declarations and reservations to article 12 - Establish independent human rights institutions, such as children’s ombudsmen or commissioners with a broad children’s rights mandate8 - Provide training on article 12, and its application in practice, for all professionals working with, and for, children, including lawyers, judges, police, social workers, community workers, psychologists, caregivers, residential and prison officers, teachers at all levels of the educational system, medical doctors, nurses and other health professionals, civil servants and public officials, asylum officers and traditional leaders - Ensure appropriate conditions for supporting and encouraging children to express their views, and make sure that these views are given due weight, by regulations and arrangements which are firmly anchored in laws and institutional codes and are regularly evaluated with regard to their effectiveness - Combat negative attitudes, which impede the full realization of the child’s right to be heard, through public campaigns, including opinion leaders and the media, to change widespread customary conceptions of the child. b) Specific obligations with regard to judicial and administrative proceedings i) The child’s right to be heard in civil judicial proceedings 50. The main issues which require that the child be heard are detailed below:
DIVORCE AND SEPARATION 51. In cases of separation and divorce, the children of 8 See the Committee’s general comment No. 2 (2002) on the role of independent human rights institutions.
the relationship are unequivocally affected by decisions of the courts. Issues of maintenance for the child as well as custody and access are determined by the judge either at trial or through court-directed mediation. Many jurisdictions have included in their laws, with respect to the dissolution of a relationship, a provision that the judge must give paramount consideration to the “best interests of the child”. 52. For this reason, all legislation on separation and divorce has to include the right of the child to be heard by decision makers and in mediation processes. Some jurisdictions, either as a matter of policy or legislation, prefer to state an age at which the child is regarded as capable of expressing her or his own views. The Convention, however, anticipates that this matter be determined on a case-by-case basis, since it refers to age and maturity, and for this reason requires an individual assessment of the capacity of the child.
SEPARATION FROM PARENTS AND ALTERNATIVE CARE 53. Whenever a decision is made to remove a child from her or his family because the child is a victim of abuse or neglect within his or her home, the view of the child must be taken into account in order to determine the best interests of the child. The intervention may be initiated by a complaint from a child, another family member or a member of the community alleging abuse or neglect in the family. 54. The Committee’s experience is that the child’s right to be heard is not always taken into account by States parties. The Committee recommends that States parties ensure, through legislation, regulation and policy directives, that the child’s views are solicited and considered, including decisions regarding placement in foster care or homes, development of care plans and their review, and visits with parents and family.
ADOPTION AND KAFALAH OF ISLAMIC LAW 55. When a child is to be placed for adoption or kafalah of
BI A CK N D E X
153
U PV EDR A TED SION
61. The court and other hearings of a child in conflict with the law should be conducted behind closed doors. Exceptions to this rule should be very limited, clearly outlined in national legislation and guided by the best interests of the child. Islamic law and finally will be adopted or placed in kafalah, it is vitally important that the child is heard. Such a process is also necessary when step-parents or foster families adopt a child, although the child and the adopting parents may have already been living together for some time. 56. Article 21 of the Convention states that the best interests of the child shall be the paramount consideration. In decisions on adoption, kafalah or other placement, the “best interests” of the child cannot be defined without consideration of the child’s views. The Committee urges all States parties to inform the child, if possible, about the effects of adoption, kafalah or other placement, and to ensure by legislation that the views of the child are heard. ii) The child’s right to be heard in penal judicial proceedings 57. In penal proceedings, the right of child to express her or his views freely in all matters affecting the child has to be fully respected and implemented throughout every stage of the process of juvenile justice.9
THE CHILD OFFENDER 58. Article 12, paragraph 2, of the Convention requires that a child alleged to have, accused of, or recognized as having, infringed the penal law, has the right to be heard. This right has to be fully observed during all stages of the judicial process, from the pre-trial stage when the child has the right to remain silent, to the right to be heard by the police, the prosecutor and the investigating judge. It also applies through the stages of adjudication and disposition, as well as implementation of the imposed measures. 59. In case of diversion, including mediation, a child must have the opportunity to give free and voluntary consent and must be given the opportunity to obtain legal and other advice and assistance in determining the appropriateness and desirability of the diversion proposed. 60. In order to effectively participate in the proceedings, every child must be informed promptly and directly about the charges against her or him in a language she or he understands, and also about the juvenile justice process and possible measures taken by the court. The proceedings should be conducted in an atmosphere enabling the child to participate and to express her/himself freely. 9 See the Committee’s general comment No. 10 (2007) on children’s rights in juvenile justice (CRC/C/GC/10). 154
THE CHILD VICTIM AND CHILD WITNESS 62. The child victim and child witness of a crime must be given an opportunity to fully exercise her or his right to freely express her or his view in accordance with United Nations Economic and Social Council resolution 2005/20, “Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime”.10 63. In particular, this means that every effort has to be made to ensure that a child victim or/and witness is consulted on the relevant matters with regard to involvement in the case under scrutiny, and enabled to express freely, and in her or his own manner, views and concerns regarding her or his involvement in the judicial process. 64. The right of the child victim and witness is also linked to the right to be informed about issues such as availability of health, psychological and social services, the role of a child victim and/or witness, the ways in which “questioning” is conducted, existing support mechanisms in place for the child when submitting a complaint and participating in investigations and court proceedings, the specific places and times of hearings, the availability of protective measures, the possibilities of receiving reparation, and the provisions for appeal. iii) The child’s right to be heard in administrative proceedings 65. All States parties should develop administrative procedures in legislation which reflect the requirements of article 12 and ensure the child’s right to be heard along with other procedural rights, including the rights to disclosure of pertinent records, notice of hearing, and representation by parents or others. 66. Children are more likely to be involved with administrative proceedings than court proceedings, because administrative proceedings are less formal, more flexible and relatively easy to establish through law and regulation. The proceedings have to be child-friendly and accessible. 67. Specific examples of administrative proceedings relevant for children include mechanisms to address discipline issues in schools (e.g. suspensions and expulsions), 10 United Nations Economic and Social Council resolution 2005/20, in particular arts. 8, 19 and 20. Available at: www.un.org/ecosoc/docs/2005/ Resolution%202005-20.pdf.
BACK
KEYWORDS INDEX
U PV EDR A TED SION refusals to grant school certificates and performancerelated issues, disciplinary measures and refusals to grant privileges in juvenile detention centres, asylum requests from unaccompanied children, and applications for driver’s licences. In these matters a child should have the right to be heard and enjoy the other rights “consistent with the procedural rules of national law”.
B. THE RIGHT TO BE HEARD AND THE LINKS WITH OTHER PROVISIONS OF THE CONVENTION 68. Article 12, as a general principle, is linked to the other general principles of the Convention, such as article 2 (the right to non-discrimination), article 6 (the right to life, survival and development) and, in particular, is interdependent with article 3 (primary consideration of the best interests of the child). The article is also closely linked with the articles related to civil rights and freedoms, particularly article 13 (the right to freedom of expression) and article 17 (the right to information). Furthermore, article 12 is connected to all other articles of the Convention, which cannot be fully implemented if the child is not respected as a subject with her or his own views on the rights enshrined in the respective articles and their implementation. 69. The connection of article 12 to article 5 (evolving capacities of the child and appropriate direction and guidance from parents, see para. 84 of the present general comment) is of special relevance, since it is crucial that the guidance given by parents takes account of the evolving capacities of the child. 1. ARTICLES 12 AND 3 70. The purpose of article 3 is to ensure that in all actions undertaken concerning children, by a public or private welfare institution, courts, administrative authorities or legislative bodies, the best interests of the child are a primary consideration. It means that every action taken on behalf of the child has to respect the best interests of the child. The best interests of the child is similar to a procedural right that obliges States parties to introduce steps into the action process to ensure that the best interests of the child are taken into consideration. The Convention obliges States parties to assure that those responsible for these actions hear the child as stipulated in article 12. This step is mandatory. 71. The best interests of the child, established in consultation with the child, is not the only factor to be considered in the actions of institutions, authorities and administration. It is, however, of crucial importance, as are the views of the child. 72. Article 3 is devoted to individual cases, but, explicitly, also requires that the best interests of children as a group are considered in all actions concerning children. States parties are consequently under an obligation to consider not only the individual situation of each child when identifying their best interests, but also the interests of children as a group. Moreover, States parties must examine
the actions of private and public institutions, authorities, as well as legislative bodies. The extension of the obligation to “legislative bodies” clearly indicates that every law, regulation or rule that affects children must be guided by the “best interests” criterion. 73. There is no doubt that the best interests of children as a defined group have to be established in the same way as when weighing individual interests. If the best interests of large numbers of children are at stake, heads of institutions, authorities, or governmental bodies should also provide opportunities to hear the concerned children from such undefined groups and to give their views due weight when they plan actions, including legislative decisions, which directly or indirectly affect children. 74. There is no tension between articles 3 and 12, only a complementary role of the two general principles: one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives. 2. ARTICLES 12, 2 AND 6 75. The right to non-discrimination is an inherent right guaranteed by all human rights instruments including the Convention on the Rights of the Child. According to article 2 of the Convention, every child has the right not to be discriminated against in the exercise of his or her rights including those provided under article 12. The Committee stresses that States parties shall take adequate measures to assure to every child the right to freely express his or her views and to have those views duly taken into account without discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. States parties shall address discrimination, including against vulnerable or marginalized groups of children, to ensure that children are assured their right to be heard and are enabled to participate in all matters affecting them on an equal basis with all other children. 76. In particular, the Committee notes with concern that, in some societies, customary attitudes and practices undermine and place severe limitations on the enjoyment of this right. States parties shall take adequate measures to raise awareness and educate the society about the negative impact of such attitudes and practices and to encourage attitudinal changes in order to achieve full implementation of the rights of every child under the Convention. 77. The Committee urges States parties to pay special attention to the right of the girl child to be heard, to receive support, if needed, to voice her view and her view be given due weight, as gender stereotypes and patriarchal values undermine and place severe limitations on girls in the enjoyment of the right set forth in article 12.
BI A CK N D E X
155
U PV EDR A TED SION 78. The Committee welcomes the obligation of States parties in article 7 of the Convention on the Rights of Persons with Disabilities to ensure that children with disabilities are provided with the necessary assistance and equipment to enable them to freely express their views and for those views to be given due weight. 79. Article 6 of the Convention on the Rights of the Child acknowledges that every child has an inherent right to life and that States parties shall ensure, to the maximum extent possible, the survival and development of the child. The Committee notes the importance of promoting opportunities for the child’s right to be heard, as child participation is a tool to stimulate the full development of the personality and the evolving capacities of the child consistent with article 6 and with the aims of education embodied in article 29. 3. ARTICLES 12, 13 AND 17 80. Article 13, on the right to freedom of expression, and article 17, on access to information, are crucial prerequisites for the effective exercise of the right to be heard. These articles establish that children are subjects of rights and, together with article 12, they assert that the child is entitled to exercise those rights on his or her own behalf, in accordance with her or his evolving capacities. 81. The right to freedom of expression embodied in article 13 is often confused with article 12. However, while both articles are strongly linked, they do elaborate different rights. Freedom of expression relates to the right to hold and express opinions, and to seek and receive information through any media. It asserts the right of the child not to be restricted by the State party in the opinions she or he holds or expresses. As such, the obligation it imposes on States parties is to refrain from interference in the expression of those views, or in access to information, while protecting the right of access to means of communication and public dialogue. Article 12, however, relates to the right of expression of views specifically about matters which affect the child, and the right to be involved in actions and decisions that impact on her or his life. Article 12 imposes an obligation on States parties to introduce the legal framework and mechanisms necessary to facilitate active involvement of the child in all actions affecting the child and in decision-making, and to fulfil the obligation to give due weight to those views once expressed. Freedom of expression in article 13 requires no such engagement or response from States parties. However, creating an environment of respect for children to express their views, consistent with article 12, also contributes towards building children’s capacities to exercise their right to freedom of expression. 82. Fulfilment of the child’s right to information, consistent with article 17 is, to a large degree, a prerequisite for the effective realization of the right to express views. Children need access to information in formats appropriate to their age and capacities on all issues of concern to them. This applies to information, for example, relating to their rights, any proceedings affecting them, national legislation, regulations and policies, local services, and appeals and 156
complaints procedures. Consistent with articles 17 and 42, States parties should include children’s rights in the school curricula. 83. The Committee also reminds States parties that the media are an important means both of promoting awareness of the right of children to express their views, and of providing opportunities for the public expression of such views. It urges various forms of the media to dedicate further resources to the inclusion of children in the development of programmes and the creation of opportunities for children to develop and lead media initiatives on their rights.11 4. ARTICLES 12 AND 5 84. Article 5 of the Convention states that States parties shall respect the responsibilities, rights and duties of parents, legal guardians, or members of the extended family or community as provided for by local custom, to give direction and guidance to the child in her or his exercise of the rights recognized in the Convention. Consequently, the child has a right to direction and guidance, which have to compensate for the lack of knowledge, experience and understanding of the child and are restricted by his or her evolving capacities, as stated in this article. The more the child himself or herself knows, has experienced and understands, the more the parent, legal guardian or other persons legally responsible for the child have to transform direction and guidance into reminders and advice and later to an exchange on an equal footing. This transformation will not take place at a fixed point in a child’s development, but will steadily increase as the child is encouraged to contribute her or his views. 85. This requirement is stimulated by article 12 of the Convention, which stipulates that the child’s views must be given due weight, whenever the child is capable of forming her or his own views. In other words, as children acquire capacities, so they are entitled to an increasing level of responsibility for the regulation of matters affecting them.12 5. ARTICLE 12 AND THE IMPLEMENTATION OF CHILD RIGHTS IN GENERAL 86. In addition to the articles discussed in the preceding paragraphs, most other articles of the Convention require and promote children’s involvement in matters affecting them. For these manifold involvements, the concept of participation is ubiquitously used. Unquestionably, the lynchpin of these involvements is article 12, but the requirement of planning, working and developing in consultation with children is present throughout the Convention. 87. The practice of implementation deals with a broad range problems, such as health, the economy, education or the environment, which are of interest not only to the child as an individual, but to groups of children and children 11 Day of general discussion on the child and the media (1996): www.unhchr. ch/html/menu2/6/crc/doc/days/media.pdf. 12 General comment No. 5 (2003) on general measures of implementation for the Convention on the Rights of the Child.
BACK
KEYWORDS INDEX
U PV EDR A TED SION in general. Consequently, the Committee has always interpreted participation broadly in order to establish procedures not only for individual children and clearly defined groups of children, but also for groups of children, such as indigenous children, children with disabilities, or children in general, who are affected directly or indirectly by social, economic or cultural conditions of living in their society. 88. This broad understanding of children’s participation is reflected in the outcome document adopted by the twenty-seventh special session of the General Assembly entitled “A world fit for children”. States parties have promised “to develop and implement programmes to promote meaningful participation by children, including adolescents, in decision-making processes, including in families and schools and at the local and national levels” (para. 32, subpara. 1). The Committee has stated in its general comment No. 5 on general measures of implementation for the Convention on the Rights of the Child: “It is important that Governments develop a direct relationship with children, not simply one mediated through non-governmental organizations (NGOs) or human rights institutions.”13
C. THE IMPLEMENTATION OF THE RIGHT TO BE HEARD IN DIFFERENT SETTINGS AND SITUATIONS 89. The right of the child to be heard has to be implemented in the diverse settings and situations in which children grow up, develop and learn. In these settings and situations, different concepts of the child and her or his role exist, which may invite or restrict children’s involvement in everyday matters and crucial decisions. Various ways of influencing the implementation of the child’s right to be heard are available, which States parties may use to foster children’s participation. 1. IN THE FAMILY
concern them. Parents should also be advised to support children in realizing the right to express their views freely and to have children’s views duly taken into account at all levels of society. 93. In order to support the development of parenting styles respecting the child’s right to be heard, the Committee recommends that States parties promote parent education programmes, which build on existing positive behaviours and attitudes and disseminate information on the rights of children and parents enshrined in the Convention. 94. Such programmes need to address: - The relationship of mutual respect between parents and children - The involvement of children in decision-making - The implication of giving due weight to the views of every family member - The understanding, promotion and respect for children’s evolving capacities Ways of dealing with conflicting views within the family
90. A family where children can freely express views and be taken seriously from the earliest ages provides an important model, and is a preparation for the child to exercise the right to be heard in the wider society.14 Such an approach to parenting serves to promote individual development, enhance family relations and support children’s socialization and plays a preventive role against all forms of violence in the home and family.
95. These programmes have to reinforce the principle that girls and boys have equal rights to express their views.
91. The Convention recognizes the rights and responsibilities of parents, or other legal guardians, to provide appropriate direction and guidance to their children (see para. 84 above), but underlines that this is to enable the child to exercise his or her rights and requires that direction and guidance are undertaken in a manner consistent with the evolving capacities of the child.
97. Mechanisms must be introduced to ensure that children in all forms of alternative care, including in institutions, are able to express their views and that those views be given due weight in matters of their placement, the regulations of care in foster families or homes and their daily lives. These should include:
92. States parties should encourage, through legislation and policy, parents, guardians and childminders to listen to children and give due weight to their views in matters that
- Legislation providing the child with the right to information about any placement, care and/or treatment plan and meaningful opportunities to express her or his views and for those views to be given due weight throughout the decision-making process.
13 Ibid., para. 12.
96. The media should play a strong role in communicating to parents that their children’s participation is of high value for the children themselves, their families and society. 2. IN ALTERNATIVE CARE
BI A CK N D E X
157
U PV EDR A TED SION - Legislation ensuring the right of the child to be heard, and that her or his views be given due weight in the development and establishment of child-friendly care services. - Establishment of a competent monitoring institution, such as a children’s ombudsperson, commissioner or inspectorate, to monitor compliance with the rules and regulations governing the provision of care, protection or treatment of children in accordance with the obligations under article 3. The monitoring body should be mandated to have unimpeded access to residential facilities (including those for children in conflict with the law), to hear the views and concerns of the child directly, and to monitor the extent to which his or her views are listened to and given due weight by the institution itself. Establishment of effective mechanisms, for example, a representative council of the children, both girls and boys, in the residential care facility, with the mandate to participate in the development and implementation of the policy and any rules of the institution. 3. IN HEALTH CARE 98. The realization of the provisions of the Convention requires respect for the child’s right to express his or her views and to participate in promoting the healthy development and well-being of children. This applies to individual health-care decisions, as well as to children’s involvement in the development of health policy and services. 99. The Committee identifies several distinct but linked issues that need consideration in respect of the child’s involvement in practices and decisions relating to her or his own health care. 100. Children, including young children, should be included in decision-making processes, in a manner consistent with their evolving capacities. They should be provided with information about proposed treatments and their effects and outcomes, including in formats appropriate and accessible to children with disabilities. 101. States parties need to introduce legislation or regulations to ensure that children have access to confidential medical counselling and advice without parental consent, irrespective of the child’s age, where this is needed for the child’s safety or well-being. Children may need such access, for example, where they are experiencing violence or abuse at home, or in need of reproductive health education or services, or in case of conflicts between parents and the child over access to health services. The right to counselling and advice is distinct from the right to give medical consent and should not be subject to any age limit. 102. The Committee welcomes the introduction in some countries of a fixed age at which the right to consent transfers to the child, and encourages States parties to give consideration to the introduction of such legislation. Thus, children above that age have an entitlement to give consent without the requirement for any individual professional assessment of capacity after consultation 158
with an independent and competent expert. However, the Committee strongly recommends that States parties ensure that, where a younger child can demonstrate capacity to express an informed view on her or his treatment, this view is given due weight. 103. Physicians and health-care facilities should provide clear and accessible information to children on their rights concerning their participation in paediatric research and clinical trials. They have to be informed about the research, so that their informed consent can be obtained in addition to other procedural safeguards. 104. States parties should also introduce measures enabling children to contribute their views and experiences to the planning and programming of services for their health and development. Their views should be sought on all aspects of health provision, including what services are needed, how and where they are best provided, discriminatory barriers to accessing services, quality and attitudes of health professionals, and how to promote children’s capacities to take increasing levels of responsibility for their own health and development. This information can be obtained through, inter alia, feedback systems for children using services or involved in research and consultative processes, and can be transmitted to local or national children’s councils or parliaments to develop standards and indicators of health services that respect the rights of the child.14 4. IN EDUCATION AND SCHOOL 105. Respect for right of the child to be heard within education is fundamental to the realization of the right to education. The Committee notes with concern continuing authoritarianism, discrimination, disrespect and violence which characterize the reality of many schools and classrooms. Such environments are not conducive to the expression of children’s views and the due weight to be given these views. 106. The Committee recommends that States parties take action to build opportunities for children to express their views and for those views to be given due weight with regard to the following issues. 107. In all educational environments, including educational programmes in the early years, the active role of children in a participatory learning environment should be promoted.15 Teaching and learning must take into account life conditions and prospects of the children. For this reason, education authorities have to include children’s and their parents’ views in the planning of curricula and school programmes. 14 The Committee also draws attention to its general comment No. 3 (2003) on HIV/Aids and the rights of the child, paras. 11 and 12, and its general comment No. 4 (2003) on adolescent health, para. 6. 15 “A human rights-based approach to Education for All: A framework for the realization of children’s right to education and rights within education”, UNICEF/UNESCO (2007).
BACK
KEYWORDS INDEX
U PV EDR A TED SION active roles in society and responsible citizenship within their communities. 108. Human rights education can shape the motivations and behaviours of children only when human rights are practised in the institutions in which the child learns, plays and lives together with other children and adults.16 In particular, the child’s right to be heard is under critical scrutiny by children in these institutions, where children can observe, whether in fact due weight is given to their views as declared in the Convention. 109. Children’s participation is indispensable for the creation of a social climate in the classroom, which stimulates cooperation and mutual support needed for child-centred interactive learning. Giving children’s views weight is particularly important in the elimination of discrimination, prevention of bullying and disciplinary measures. The Committee welcomes the expansion of peer education and peer counselling. 110. Steady participation of children in decision-making processes should be achieved through, inter alia, class councils, student councils and student representation on school boards and committees, where they can freely express their views on the development and implementation of school policies and codes of behaviour. These rights need to be enshrined in legislation, rather than relying on the goodwill of authorities, schools and head teachers to implement them. 111. Beyond the school, States parties should consult children at the local and national levels on all aspects of education policy, including, inter alia, the strengthening of the child-friendly character of the educational system, informal and non-formal facilities of learning, which give children a “second chance”, school curricula, teaching methods, school structures, standards, budgeting and child-protection systems. 112. The Committee encourages States parties to support the development of independent student organizations, which can assist children in competently performing their participatory roles in the education system. 113. In decisions about the transition to the next level of schools or choice of tracks or streams, the right of the child to be heard has to be assured as these decisions deeply affect the child’s best interests. Such decisions must be subject to administrative or judicial review. Additionally, in disciplinary matters, the right of the child to be heard has to be fully respected.17 In particular, in the case of exclusion of a child from instruction or school, this decision must be subject to judicial review as it contradicts the child’s right to education. 114. The Committee welcomes the introduction of childfriendly school programmes in many countries, which seek to provide interactive, caring, protective and participatory environments that prepare children and adolescents for 16 Committee on the Rights of the Child, general comment No. 1 (2001) on the aims of education (art. 29, para. 1 of the Convention), (CRC/GC/2001/1). 17 States parties should refer to the Committee’s general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, which explains participatory strategies to eliminate corporal punishment (CRC/C/GC/8).
5. IN PLAY, RECREATION, SPORTS AND CULTURAL ACTIVITIES 115. Children require play, recreation, physical and cultural activities for their development and socialization. These should be designed taking into account children’s preferences and capacities. Children who are able to express their views should be consulted regarding the accessibility and appropriateness of play and recreation facilities. Very young children and some children with disabilities, who are unable to participate in formal consultative processes, should be provided with particular opportunities to express their wishes. 6. IN THE WORKPLACE 116. Children working at younger ages than permitted by laws and International Labour Organization Conventions Nos. 138 (1973) and 182 (1999) have to be heard in childsensitive settings in order to understand their views of the situation and their best interests. They should be included in the search for a solution, which respects the economic and socio-structural constraints as well as the cultural context under which these children work. Children should also be heard when policies are developed to eliminate the root causes of child labour, in particular regarding education. 117. Working children have a right to be protected by law against exploitation and should be heard when worksites and conditions of work are examined by inspectors investigating the implementation of labour laws. Children and, if existing, representatives of working children’s associations should also be heard when labour laws are drafted or when the enforcement of laws is considered and evaluated. 7. IN SITUATIONS OF VIOLENCE 118. The Convention establishes the right of the child to be protected from all forms of violence and the responsibility of States parties to ensure this right for every child without any discrimination. The Committee encourages States parties to consult with children in the development and implementation of legislative, policy, educational and other measures to address all forms of violence. Particular attention needs to be paid to ensuring that marginalized and disadvantaged children, such as exploited children, street children or refugee children, are not excluded from consultative processes designed to elicit views on relevant legislation and policy processes. 119. In this regard, the Committee welcomes the findings of the Secretary-General’s Study on Violence against Children, and urges States Parties to implement fully its recommendations, including the recommendation to provide the space for children to freely express their views and give these views due weight in all aspects of prevention, reporting and monitoring violence against them.18 18 Report of the independent expert for the United Nations Study on Violence against Children (A/61/299).
BI A CK N D E X
159
U PV EDR A TED SION
120. Much of the violence perpetrated against children goes unchallenged both because certain forms of abusive behaviour are understood by children as accepted practices, and due to the lack of child-friendly reporting mechanisms. For example, they have no one to whom they can report in confidence and safety about experienced maltreatment, such as corporal punishment, genital mutilation or early marriage, and no channel to communicate their general observations to those accountable for implementation of their rights. Thus, effective inclusion of children in protective measures requires that children be informed about their right to be heard and to grow up free from all forms of physical and psychological violence. States parties should oblige all children’s institutions to establish easy access to individuals or organizations to which they can report in confidence and safety, including through telephone helplines, and to provide places where children can contribute their experience and views on combating violence against children. 121. The Committee also draws the attention of States parties to the recommendation in the Secretary-General’s Study on Violence against Children to support and encourage children’s organizations and child-led initiatives to address violence and to include these organizations in the elaboration, establishment and evaluation of antiviolence programmes and measures, so that children can play a key role in their own protection. 8. IN THE DEVELOPMENT OF PREVENTION STRATEGIES 122. The Committee notes that the voices of children have increasingly become a powerful force in the prevention of child rights violations. Good practice examples are available, inter alia, in the fields of violence prevention in schools, combating child exploitation through hazardous and extensive labour, providing health services and education to street children, and in the juvenile justice system. Children should be consulted in the formulation of legislation and policy related to these and other problem areas and involved in the drafting, development and implementation of related plans and programmes. 9. IN IMMIGRATION AND ASYLUM PROCEEDINGS 123. Children who come to a country following their parents in search of work or as refugees are in a particularly vulnerable situation. For this reason it is urgent to fully implement their right to express their views on all aspects of the immigration and asylum proceedings. In the case of migration, the child has to be heard on his or her educational expectations and health conditions in order to integrate him or her into school and health services. In the case of an asylum claim, the child must additionally have the opportunity to present her or his reasons leading to the asylum claim. 124. The Committee emphasizes that these children have to be provided with all relevant information, in their own 160
language, on their entitlements, the services available, including means of communication, and the immigration and asylum process, in order to make their voice heard and to be given due weight in the proceedings. A guardian or adviser should be appointed, free of charge. Asylumseeking children may also need effective family tracing and relevant information about the situation in their country of origin to determine their best interests. Particular assistance may be needed for children formerly involved in armed conflict to allow them to pronounce their needs. Furthermore, attention is needed to ensure that stateless children are included in decision-making processes within the territories where they reside.19 10. IN EMERGENCY SITUATIONS 125. The Committee underlines that the right embodied in article 12 does not cease in situations of crisis or in their aftermath. There is a growing body of evidence of the significant contribution that children are able to make in conflict situations, post-conflict resolution and reconstruction processes following emergencies.20 Thus, the Committee emphasized in its recommendation after the day of general discussion in 2008 that children affected by emergencies should be encouraged and enabled to participate in analysing their situation and future prospects. Children’s participation helps them to regain control over their lives, contributes to rehabilitation, develops organizational skills and strengthens a sense of identity. However, care needs to be taken to protect children from exposure to situations that are likely to be traumatic or harmful. 126. Accordingly, the Committee encourages States parties to support mechanisms which enable children, in particular adolescents, to play an active role in both postemergency reconstruction and post-conflict resolution processes. Their views should be elicited in the assessment, design, implementation, monitoring and evaluation of programmes. For example, children in refugee camps can be encouraged to contribute to their own safety and well-being through the establishment of children’s forums. Support needs to be given to enable children to establish such forums, while ensuring that their operation is consistent with children’s best interests and their right to protection from harmful experiences. 11. IN NATIONAL AND INTERNATIONAL SETTINGS 127. Much of the opportunity for children’s participation takes place at the community level. The Committee welcomes the growing number of local youth parliaments, municipal children’s councils and ad hoc consultations where children can voice their views in decisionmaking processes. However, these structures for formal representative participation in local government should be just one of many approaches to the implementation of article 12 at the local level, as they only allow for a relatively small number of children to engage in their local communities. Consulting hours of politicians and officials, 19 Cf. the Committee’s general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin (CRC/ GC/2005/6). 20 “The participation of children and young people in emergencies: a guide for relief agencies”, UNICEF, Bangkok (2007).
BACK
KEYWORDS INDEX
U PV EDR A TED SION open house and visits in schools and kindergartens create additional opportunities for communication. 128. Children should be supported and encouraged to form their own child-led organizations and initiatives, which will create space for meaningful participation and representation. In addition, children can contribute their perspectives, for example, on the design of schools, playgrounds, parks, leisure and cultural facilities, public libraries, health facilities and local transport systems in order to ensure more appropriate services. In community development plans that call for public consultation, children’s views should be explicitly included. 129. Such participation opportunities are, meanwhile, established in many countries also on the district, regional, federal state and national levels, where youth parliaments, councils and conferences provide forums for children to present their views and make them known to relevant audiences. NGOs and civil society organizations have developed practices to support children, which safeguard the transparency of representation and counter the risks of manipulation or tokenism. 130. The Committee welcomes the significant contributions by UNICEF and NGOs in promoting awareness-raising on children’s right to be heard and their participation in all domains of their lives, and encourages them to further promote child participation in all matters affecting them, including at the grass-roots, community, and national or international levels, and to facilitate exchanges of best practices. Networking among child-led organizations should be actively encouraged to increase opportunities for shared learning and platforms for collective advocacy. 131. At the international level, children’s participation at the World Summits for Children convened by the General Assembly in 1990 and 2002, and the involvement of children in the reporting process to the Committee on the Rights of the Child have particular relevance. The Committee welcomes written reports and additional oral information submitted by child organizations and children’s representatives in the monitoring process of child rights implementation by States parties, and encourages States parties and NGOs to support children to present their views to the Committee.
D. BASIC REQUIREMENTS FOR THE IMPLEMENTATION OF THE RIGHT OF THE CHILD TO BE HEARD 132. The Committee urges States parties to avoid tokenistic approaches, which limit children’s expression of views, or which allow children to be heard, but fail to give their views due weight. It emphasizes that adult manipulation of children, placing children in situations where they are told what they can say, or exposing children to risk of harm through participation are not ethical practices and cannot be understood as implementing article 12. 133. If participation is to be effective and meaningful, it needs to be understood as a process, not as an individual one-off event. Experience since the Convention on
the Rights of the Child was adopted in 1989 has led to a broad consensus on the basic requirements which have to be reached for effective, ethical and meaningful implementation of article 12. The Committee recommends that States parties integrate these requirements into all legislative and other measures for the implementation of article 12. 134. All processes in which a child or children are heard and participate, must be: a) Transparent and informative - children must be provided with full, accessible, diversity-sensitive and ageappropriate information about their right to express their views freely and their views to be given due weight, and how this participation will take place, its scope, purpose and potential impact; b) Voluntary - children should never be coerced into expressing views against their wishes and they should be informed that they can cease involvement at any stage; c) Respectful - children’s views have to be treated with respect and they should be provided with opportunities to initiate ideas and activities. Adults working with children should acknowledge, respect and build on good examples of children’s participation, for instance, in their contributions to the family, school, culture and the work environment. They also need an understanding of the socio-economic, environmental and cultural context of children’s lives. Persons and organizations working for and with children should also respect children’s views with regard to participation in public events; d) Relevant - the issues on which children have the right to express their views must be of real relevance to their lives and enable them to draw on their knowledge, skills and abilities. In addition, space needs to be created to enable children to highlight and address the issues they themselves identify as relevant and important; e) Child-friendly - environments and working methods should be adapted to children’s capacities. Adequate time and resources should be made available to ensure that children are adequately prepared and have the confidence and opportunity to contribute their views. Consideration needs to be given to the fact that children will need differing levels of support and forms of involvement according to their age and evolving capacities; f) Inclusive - participation must be inclusive, avoid existing patterns of discrimination, and encourage opportunities for marginalized children, including both girls and boys, to be involved (see also para. 88 above). Children are not a homogenous group and participation needs to provide for equality of opportunity for all, without discrimination on any grounds. Programmes also need to ensure that they are culturally sensitive to children from all communities; g) Supported by training - adults need preparation, skills and support to facilitate children’s participation effectively, to provide them, for example, with skills in listening, working jointly with children and engaging children effectively in accordance with their evolving capacities. Children themselves can be involved as trainers and
BI A CK N D E X
161
U PV EDR A TED SION
facilitators on how to promote effective participation; they require capacity-building to strengthen their skills in, for example, effective participation awareness of their rights, and training in organizing meetings, raising funds, dealing with the media, public speaking and advocacy;
influenced any outcomes. Wherever appropriate, children should be given the opportunity to participate in followup processes or activities. Monitoring and evaluation of children’s participation needs to be undertaken, where possible, with children themselves.
h) Safe and sensitive to risk - in certain situations, expression of views may involve risks. Adults have a responsibility towards the children with whom they work and must take every precaution to minimize the risk to children of violence, exploitation or any other negative consequence of their participation. Action necessary to provide appropriate protection will include the development of a clear child-protection strategy which recognizes the particular risks faced by some groups of children, and the extra barriers they face in obtaining help. Children must be aware of their right to be protected from harm and know where to go for help if needed. Investment in working with families and communities is important in order to build understanding of the value and implications of participation, and to minimize the risks to which children may otherwise be exposed;
E. CONCLUSIONS
i) Accountable - a commitment to follow-up and evaluation is essential. For example, in any research or consultative process, children must be informed as to how their views have been interpreted and used and, where necessary, provided with the opportunity to challenge and influence the analysis of the findings. Children are also entitled to be provided with clear feedback on how their participation has
162
135. Investment in the realization of the child’s right to be heard in all matters of concern to her or him and for her or his views to be given due consideration, is a clear and immediate legal obligation of States parties under the Convention. It is the right of every child without any discrimination. Achieving meaningful opportunities for the implementation of article 12 will necessitate dismantling the legal, political, economic, social and cultural barriers that currently impede children’s opportunity to be heard and their access to participation in all matters affecting them. It requires a preparedness to challenge assumptions about children’s capacities, and to encourage the development of environments in which children can build and demonstrate capacities. It also requires a commitment to resources and training. 134. Fulfilling these obligations will present a challenge for States parties. But it is an attainable goal if the strategies outlined in this general comment are systematically implemented and a culture of respect for children and their views is built.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
163
number 13
U PV EDR A TED SION them must be respected, especially when they are victims of violence, as well as in all measures of prevention;
IN T R O DUC T I ON
g) Primary prevention, through public health, education, social services and other approaches, of all forms of violence is of paramount importance;
1. Article 19 states the following: “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. “2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” 2. Rationale for the present general comment. The Committee on the Rights of the Child (hereinafter: the Committee) issues the present general comment on article 19 of the Convention on the Rights of the Child (hereinafter: the Convention), since the extent and intensity of violence exerted on children is alarming. Measures to end violence must be massively strengthened and expanded in order to effectively put an end to these practices which jeopardize children’s development and societies’ potential nonviolent solutions for conflict resolution. 3. Overview. The general comment is based on the following fundamental assumptions and observations: a) “No violence against children is justifiable; all violence against children is preventable”1; b) A child rights-based approach to child caregiving and protection requires a paradigm shift towards respecting and promoting the human dignity and the physical and psychological integrity of children as rightsbearing individuals rather than perceiving them primarily as “victims”;
i) The Committee is also aware of widespread and intense violence applied against children in State institutions and by State actors including in schools, care centres, residential homes, police custody and justice institutions which may amount to torture and killing of children, as well as violence against children frequently used by armed groups and State military forces. 4. Definition of violence. For the purposes of the present general comment, “violence” is understood to mean “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse” as listed in article 19, paragraph 1, of the Convention. The term violence has been chosen here to represent all forms of harm to children as listed in article 19, paragraph 1, in conformity with the terminology used in the 2006 United Nations study on violence against children, although the other terms used to describe types of harm (injury, abuse, neglect or negligent treatment, maltreatment and exploitation) carry equal weight2. In common parlance the term violence is often understood to mean only physical harm and/or intentional harm. However, the Committee emphasizes most strongly that the choice of the term violence in the present general comment must not be interpreted in any way to minimize the impact of, and need to address, non-physical and/or non-intentional forms of harm (such as, inter alia, neglect and psychological maltreatment).
e) Children’s rights to be heard and to have their views given due weight must be respected systematically in all decision-making processes, and their empowerment and participation should be central to child caregiving and protection strategies and programmes;
5. States’ obligations and the responsibilities of family and other actors. References to “States parties” relate to the obligations of States parties to assume their responsibilities towards children not only at the national level, but also at the provincial and municipal levels. These special obligations are due diligence and the obligation to prevent violence or violations of human rights, the obligation to protect child victims and witnesses from human rights violations, the obligation to investigate and to punish those responsible, and the obligation to provide access to redress human rights violations. Regardless of whether violence takes place, States parties have a positive and active obligation to support and assist parents and other caregivers to secure, within their abilities and financial capacities and with respect for the evolving capacities of the child, the living conditions necessary for the child’s optimal development (arts. 18 and 27). States parties,
f) The right of children to have their best interests be a primary consideration in all matters involving or affecting
2 Translations of the Convention into other languages do not necessarily include exact equivalents of the English term “violence”.
c) The concept of dignity requires that every child is recognized, respected and protected as a rights holder and as a unique and valuable human being with an individual personality, distinct needs, interests and privacy; d) The principle of the rule of law should apply fully to children as it does to adults;
166
h) The Committee recognizes the primary position of families, including extended families, in child caregiving and protection and in the prevention of violence. Nevertheless, the Committee also recognizes that the majority of violence takes place in the context of families and that intervention and support are therefore required when children become the victims of hardship and distress imposed on, or generated in, families;
BACK
KEYWORDS INDEX
U PV EDR A TED SION furthermore, shall ensure that all persons who, within the context of their work, are responsible for the prevention of, protection from, and reaction to violence and in the justice systems are addressing the needs and respecting the rights of children. 6. Evolution of general comment No. 13. The present general comment builds on the existing guidance provided by the Committee in its review of States parties’ reports and the respective concluding observations, the recommendations of two days of general discussion on violence against children, held in 2000 and 2001, general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, and references in other general comments to the topic of violence. The present general comment draws attention to the recommendations of the 2006 report of the independent expert for the United Nations study on violence against children (A/61/299) and calls on States parties to implement those recommendations without delay. It calls attention to the detailed guidance available in the Guidelines for the Alternative Care of Children3. It also draws on the expertise and experience of United Nations agencies, Governments, non-governmental organizations (NGOs), community organizations, development agencies, and children themselves in seeking to implement article 19 in practice4. 7. Article 19 in context. The Committee recognizes that: a) Article 19 is one of many provisions in the Convention directly relating to violence. The Committee also recognizes the direct relevance to article 19 of the Optional Protocol on the sale of children, child prostitution and child pornography and the Optional Protocol on the involvement of children in armed conflict. However, the Committee holds that article 19 forms the core provision for discussions and strategies to address and eliminate all forms of violence in the context of the Convention more broadly; b) Article 19 is strongly linked to a broad range of provisions in the Convention beyond those relating directly to violence. In addition to the articles containing the rights identified as principles of the Convention (see section V of the present general comment), implementation of article 19 must be situated in the context of articles 5, 9, 18 and 27; c) Children’s rights to respect for their human dignity, physical and psychological integrity and to equal protection under the law are also recognized in other international and regional human rights instruments; d) Implementation of article 19 requires cooperation within and between national, regional and international human rights bodies, mechanisms and United Nations agencies; e) Cooperation is needed in particular with the Special Representative of the Secretary-General on Violence against Children, who has the mandate to promote the implementation of the recommendations of the United
Nations study on violence against children in close collaboration with Member States and a wide range of partners, including United Nations agencies and organizations, civil society organizations and children, in order to safeguard the child’s right to freedom from all forms of violence. 8. Dissemination. The Committee recommends that States parties widely disseminate the present general comment within government and administrative structures, to parents, other caregivers, children, professional organizations, communities and civil society at large. All channels of dissemination, including print media, the Internet and children’s own communication means, should be used. This will necessitate translating it into relevant languages, including sign languages, Braille and easy-to-read formats for children with disabilities. It also requires making culturally appropriate and child-friendly versions available, holding workshops and seminars, implementing age- and disability-specific support to discuss its implications and how best to implement it, and incorporating it into the training of all professionals working for and with children. 9. Reporting requirements under the Convention. The Committee refers States parties to the reporting requirements outlined in the treaty-specific reporting guidelines (CRC/C/58/Rev.2 and Corr.1), in general comment No. 8 (para. 53), and in the concluding observations of the Committee adopted following the dialogues with representatives of States parties. The current general comment consolidates and specifies the measures on which States parties are expected to give information in the reports to be submitted under article 44 of the Convention. The Committee also recommends that States parties include information on progress made towards implementing the recommendations of the United Nations study on violence against children (A/61/299, para. 116). Reporting should comprise laws and other regulations taken to prohibit violence and to intervene appropriately when violence occurs and also measures for the prevention of violence, awareness-raising activities and the promotion of positive, non-violent relationships. In the reports it should be furthermore specified who has responsibility for the child and family at each stage of intervention (including prevention), what those responsibilities are, at what stage and under what circumstances professionals can intervene, and how different sectors work together. 10. Additional sources of information. The Committee also encourages United Nations agencies, national human rights institutions, NGOs and other competent bodies to provide it with relevant information on the legal status and prevalence of all forms of violence and progress towards their elimination.
3 General Assembly resolution 64/142, annex. 4 See the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (Economic and Social Council resolution 2005/20, annex).
BI A CK N D E X
167
U PV EDR A TED SION
O B JEC T I VES 11. The present general comment seeks: a) To guide States parties in understanding their obligations under article 19 of the Convention to prohibit, prevent and respond to all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation of children, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child, including State actors; b) To outline the legislative, judicial, administrative, social and educational measures that States parties must take; c) To overcome isolated, fragmented and reactive initiatives to address child caregiving and protection which have had limited impact on the prevention and elimination of all forms of violence; d) To promote a holistic approach to implementing article 19 based on the Convention’s overall perspective on securing children’s rights to survival, dignity, well-being, health, development, participation and non-discrimination – the fulfilment of which are threatened by violence; e) To provide States parties and other stakeholders with a basis on which to develop a coordinating framework for eliminating violence through comprehensive child rightsbased caregiving and protection measures; f) To highlight the need for all States parties to move quickly to fulfil their obligations under article 19.
V IO L E NCE I N CHILDREN’S LIVES
12. Challenges. The Committee acknowledges and welcomes the numerous initiatives developed by Governments and others to prevent and respond to violence against children. In spite of these efforts, existing initiatives are in general insufficient. Legal frameworks in a majority of States still fail to prohibit all forms of violence against children, and where laws are in place, their enforcement is often inadequate. Widespread social and cultural attitudes and practices condone violence. The impact of measures taken is limited by lack of knowledge, data and understanding of violence against children and its root causes, by reactive efforts focusing on symptoms and consequences rather than causes, and by strategies which are fragmented rather than integrated. Resources allocated to address the problem are inadequate. 13. The human rights imperative. Addressing and eliminating the widespread prevalence and incidence of 168
violence against children is an obligation of States parties under the Convention. Securing and promoting children’s fundamental rights to respect for their human dignity and physical and psychological integrity, through the prevention of all forms of violence, is essential for promoting the full set of child rights in the Convention. All other arguments presented here reinforce but do not replace this human rights imperative. Strategies and systems to prevent and respond to violence must therefore adopt a child rights rather than a welfare approach. (See para. 53 for more details). 14. Societal development and children’s contribution. A respectful, supportive child-rearing environment free from violence supports the realization of children’s individual personalities and fosters the development of social, responsible and actively contributing citizens in the local community and larger society. Research shows that children who have not experienced violence and who develop in a healthy manner are less likely to act violently, both in childhood and when they become adults. Preventing violence in one generation reduces its likelihood in the next. Implementation of article 19 is therefore a key strategy for reducing and preventing all forms of violence in societies and for promoting “social progress and better standards of life” and “freedom, justice and peace in the world” for the “human family” in which children have a place and a value equal to that of adults (Convention preamble). 15. Survival and development – the devastating impact of violence against children. Children’s survival and their “physical, mental, spiritual, moral and social development” (art. 27, para. 1) are severely negatively impacted by violence, as described below: a) The short- and long-term health consequences of violence against children and child maltreatment are widely recognized. They include: fatal injury; non-fatal injury (possibly leading to disability); physical health problems (including failure to thrive, later lung, heart and liver disease and sexually transmitted infections); cognitive impairment (including impaired school and work performance); psychological and emotional consequences (such as feelings of rejection and abandonment, impaired attachment, trauma, fear, anxiety, insecurity and shattered self-esteem); mental health problems (such as anxiety and depressive disorders, hallucinations, memory disturbances and suicide attempts); and health-risk behaviours (such as substance abuse and early initiation of sexual behaviour); b) Developmental and behavioural consequences (such as school non-attendance and aggressive, antisocial, selfdestructive and interpersonal destructive behaviours) can lead, inter alia, to deterioration of relationships, exclusion from school and coming into conflict with the law). There is evidence that exposure to violence increases a child’s risk of further victimization and an accumulation of violent experiences, including later intimate partner violence5. c) The impact on children, in particular adolescents, of high-handed or “zero tolerance” State policies in response to child violence is highly destructive as it is a punitive 5 See Paulo Sérgio Pinheiro, independent expert for the United Nations Secretary-General’s study on violence against children, World Report on Violence against Children (Geneva, 2006), pp. 63-66.
BACK
KEYWORDS INDEX
U PV EDR A TED SION approach victimizing children by reacting to violence with more violence. Such policies are often shaped by public concerns over citizens’ security and by the high profile given to these issues by mass media. State policies on public security must carefully consider the root causes of children’s offences in order to provide a way out of a vicious circle of retaliating violence with violence. 16. The cost of violence against children. The human, social and economic costs of denying children’s rights to protection are enormous and unacceptable. Direct costs may include medical care, legal and social welfare services and alternative care. Indirect costs may include possible lasting injury or disability, psychological costs or other impacts on a victim’s quality of life, disruption or discontinuation of education, and productivity losses in the future life of the child. They also include costs associated with the criminal justice system as a result of crimes committed by children who have experienced violence. The social costs arising from a demographic imbalance due to the discriminatory elimination of girls before birth are high and have potential implications for increased violence against girls including abduction, early and forced marriage, trafficking for sexual purposes and sexual violence.
19. Forms of violence – overview. The following nonexhaustive lists outlining forms of violence apply to all children in all settings and in transit between settings. Children can experience violence at the hands of adults, and violence may also occur among children. Furthermore, some children harm themselves. The Committee recognizes that forms of violence often co-occur and that they can span the categories used here for convenience. Both girls and boys are at risk of all forms of violence, but violence often has a gender component. For example, girls may experience more sexual violence at home than boys whereas boys may be more likely to encounter – and experience violence within – the criminal justice system. (See also para. 72 (b) on the gender dimensions of violence). 20. Neglect or negligent treatment. Neglect means the failure to meet children’s physical and psychological needs, protect them from danger, or obtain medical, birth registration or other services when those responsible for children’s care have the means, knowledge and access to services to do so. It includes: a) Physical neglect: failure to protect a child from harm6, including through lack of supervision, or failure to provide the child with basic necessities including adequate food, shelter, clothing and basic medical care; b)Psychological or emotional neglect: including lack of any emotional support and love, chronic inattention to the child, caregivers being “psychologically unavailable” by overlooking young children’s cues and signals, and exposure to intimate partner violence, drug or alcohol abuse;
L EG A L ANAL YSI S
OF ARTICLE 19
A. ARTICLE 19, PARAGRAPH 1
c) Neglect of children’s physical or mental health: withholding essential medical care;
1. “… ALL FORMS OF ...” 17. No exceptions. The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable. 18. The need for child rights-based definitions. States parties need to establish national standards for child well-being, health and development as securing these conditions is the ultimate goal of child caregiving and protection. Clear operational legal definitions are required of the different forms of violence outlined in article 19 in order to ban all forms of violence in all settings. These definitions must take into account the guidance provided in the present general comment, must be sufficiently clear to be usable and should be applicable in different societies and cultures. Efforts to standardize definitions internationally (in order to facilitate data collection and cross-country exchange of experiences) should be encouraged.
d) Educational neglect: failure to comply with laws requiring caregivers to secure their children’s education through attendance at school or otherwise; and e) Abandonment: a practice which is of great concern and which can disproportionately affect, inter alia, children out of wedlock and children with disabilities in some societies7. 21. Mental violence. “Mental violence”, as referred to in the Convention, is often described as psychological maltreatment, mental abuse, verbal abuse and emotional abuse or neglect and this can include: a) All forms of persistent harmful interactions with the child, for example, conveying to children that they are worthless, unloved, unwanted, endangered or only of value in meeting another’s needs; b) Scaring, terrorizing and threatening; exploiting and corrupting; spurning and rejecting; isolating, ignoring and favouritism; 6 States parties are also obliged to support caregivers to prevent accidents (art. 19 and art. 24, para. 2 (e)). 7 In many countries children are abandoned because parents and caregivers living in poverty do not have the means to support them. According to the definition, neglect is a failure of care when parents have the means to meet their children’s needs. The Committee has often urged States parties to “render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities” (art. 18, para. 2 of the Convention).
BI A CK N D E X
169
U PV EDR A TED SION c) Denying emotional responsiveness; neglecting mental health, medical and educational needs; d) Insults, name-calling, humiliation, ridiculing and hurting a child’s feelings;
belittling,
e) Exposure to domestic violence; f) Placement in solitary confinement, isolation or humiliating or degrading conditions of detention; and g) Psychological bullying and hazing8 by adults or other children, including via information and communication technologies (ICTs) such as mobile phones and the Internet (known as “cyberbullying”). 22. Physical violence. This includes fatal and non-fatal physical violence. The Committee is of the opinion that physical violence includes: a) All corporal punishment and all other forms of torture, cruel, inhuman or degrading treatment or punishment; and b) Physical bullying and hazing by adults and by other children. 23. Children with disabilities may be subject to particular forms of physical violence such as: a) Forced sterilization, particularly girls; b) Violence in the guise of treatment (for example electroconvulsive treatment (ECT) and electric shocks used as “aversion treatment” to control children’s behaviour); and c) Deliberate infliction of disabilities on children for the purpose of exploiting them for begging in the streets or elsewhere. 24. Corporal punishment. In general comment No. 8 (para. 11), the Committee defined “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading. Other specific forms of corporal punishment are listed in the report of the independent expert for the United Nations study on violence against children (A/61/299, paras. 56, 60 and 62). 25. Sexual abuse and exploitation. Sexual abuse and exploitation includes: a) The inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity9; 8 “Hazing” refers to rituals and other activities involving harassment, violence or humiliation which are used as a way of initiating a person into a group. 9 Sexual abuse comprises any sexual activities imposed by an adult on a child, against which the child is entitled to protection by criminal law. Sexual activities are also considered as abuse when committed against a child by another child, if the child offender is significantly older than the child victim or uses power, threat or other means of pressure. Sexual activities between children are not considered as sexual abuse if the children are older than the age limit defined by the State party for consensual sexual activities 170
b) The use of children in commercial sexual exploitation; and c) The use of children in audio or visual images of child sexual abuse; d) Child prostitution, sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between countries) and sale of children for sexual purposes and forced marriage. Many children experience sexual victimization which is not accompanied by physical force or restraint but which is nonetheless psychologically intrusive, exploitive and traumatic. 26. Torture and inhuman or degrading treatment or punishment. This includes violence in all its forms against children in order to extract a confession, to extrajudicially punish children for unlawful or unwanted behaviours, or to force children to engage in activities against their will, typically applied by police and law-enforcement officers, staff of residential and other institutions and persons who have power over children, including non-State armed actors. Victims are often children who are marginalized, disadvantaged and discriminated against and who lack the protection of adults responsible for defending their rights and best interests. This includes children in conflict with the law, children in street situations, minorities and indigenous children, and unaccompanied children. The brutality of such acts often results in life-long physical and psychological harm and social stress. 27. Violence among children. This includes physical, psychological and sexual violence, often by bullying, exerted by children against other children, frequently by groups of children, which not only harms a child’s physical and psychological integrity and well-being in the immediate term, but often has severe impact on his or her development, education and social integration in the medium and long term. Also, violence by youth gangs takes a severe toll on children, whether as victims or as participants. Although children are the actors, the role of adults responsible for these children is crucial in all attempts to appropriately react and prevent such violence, ensuring that measures do not exacerbate violence by taking a punitive approach and using violence against violence. 28. Self-harm. This includes eating disorders, substance use and abuse, self-inflicted injuries, suicidal thoughts, suicide attempts and actual suicide. Suicide among adolescents is of particular concern to the Committee. 29. Harmful practices. These include, but are not limited to: a) Corporal punishment and other cruel or degrading forms of punishment;
BACK
KEYWORDS INDEX
U PV EDR A TED SION b) Female genital mutilation; c) Amputations, binding, scarring, burning and branding; d) Violent and degrading initiation rites; force-feeding of girls; fattening; virginity testing (inspecting girls’ genitalia); e) Forced marriage and early marriage; f) “Honour” crimes; “retribution” acts of violence (where disputes between different groups are taken out on children of the parties involved); dowry-related death and violence; g) Accusations of “witchcraft” and related harmful practices such as “exorcism”; h) Uvulectomy and teeth extraction. 30. Violence in the mass media. Mass media, especially tabloids and the yellow press, tend to highlight shocking occurrences and as a result create a biased and stereotyped image of children, in particular of disadvantaged children or adolescents, who are often portrayed as violent or delinquent just because they may behave or dress in a different way. Such stirred-up stereotypes pave the way for State policies based on a punitive approach, which may include violence as a reaction to assumed or factual misdemeanours of children and young persons. 31.Violence through information and communications technologies10. Child protection risks in relation to ICT comprise the following overlapping areas: a) Sexual abuse of children to produce both visual and audio child abuse images facilitated by the Internet and other ICT; b) The process of taking, making, permitting to take, distributing, showing, possessing or advertising indecent photographs or pseudophotographs (“morphing”) and videos of children and those making a mockery of an individual child or categories of children; c) Children as users of ICT: i) As recipients of information, children may be exposed to actually or potentially harmful advertisements, spam, sponsorship, personal information and content which is aggressive, violent, hateful, biased, racist, pornographic , unwelcome and/or misleading11; ii) As children in contact with others through ICT, children may be bullied, harassed or stalked (child “luring”) and/or coerced, tricked or persuaded into meeting strangers off-line, being “groomed” for involvement in sexual activities and/or providing personal information; iii) As actors, children may become involved in bullying or harassing others, playing games that negatively influence 10 Information technologies such as the Internet and mobile phones have great potential as positive tools to help keep children safe and as a way to report suspected or actual violence or maltreatment. A protective environment needs to be created through regulation and monitoring of information technologies including empowering children to safely use these technologies. 11 Exposure to pornography can lead to an increase in child-on-child sexual abuse as children exposed to pornography “try out” what they have seen in practice with younger children or those to whom they have easy access and over whom they have control.
their psychological development, creating and uploading inappropriate sexual material, providing misleading information or advice, and/or illegal downloading, hacking, gambling, financial scams and/or terrorism12. 32. Institutional and system violations of child rights. Authorities at all levels of the State responsible for the protection of children from all forms of violence may directly and indirectly cause harm by lacking effective means of implementation of obligations under the Convention. Such omissions include the failure to adopt or revise legislation and other provisions, inadequate implementation of laws and other regulations and insufficient provision of material, technical and human resources and capacities to identify, prevent and react to violence against children. It is also an omission when measures and programmes are not equipped with sufficient means to assess, monitor and evaluate progress or shortcomings of the activities to end violence against children. Also, in the commission of certain acts, professionals may abuse children’s right to freedom from violence, for example, when they execute their responsibilities in a way that disregards the best interests, the views and the developmental objectives of the child.
2. “WHILE IN THE CARE OF…”
33. Definition of “caregivers”. The Committee considers that, while respecting the evolving capacities and progressive autonomy of the child, all human beings below the age of 18 years are nonetheless “in the care of” someone, or should be. There are only three conditions for children: emancipated13 , in the care of primary or proxy caregivers, or in the de facto care of the State. The definition of “caregivers”, referred to in article 19, paragraph 1, as “parent(s), legal guardian(s) or any other person who has the care of the child”, covers those with clear, recognized legal, professional-ethical and/or cultural responsibility for the safety, health, development and well-being of the child, primarily: parents, foster parents, adoptive parents, caregivers in kafalah of Islamic law, guardians, extended family and community members; education, school and early childhood personnel; child caregivers employed by parents; recreational and sports coaches – including youth group supervisors; workplace employers or supervisors; and institutional personnel (governmental or non-governmental) in the position of caregivers for example responsible adults in health-care, juvenile-justice and drop-in and residential-care settings. In the case of unaccompanied children, the State is the de facto caregiver. 34. Definition of care settings. Care settings are places where children spend time under the supervision of 12 Adapted from a table developed by the EUKids Online project, cited in AUPs in Context: Establishing Safe and Responsible Online Behaviours (Becta, 2009), p. 6. See also the Rio de Janeiro Declaration and Call for Action to Prevent and Stop Sexual Exploitation of Children and Adolescents. Available from http://iiicongressomundial.net/congresso/arquivos/Rio%20 Declaration%20and%20Call%20for%20Action%20-%20FINAL%20Version. pdf. 13 In line with the Committee’s previous recommendation to States parties to increase the age for marriage to 18 years for both girls and boys (general comment No. 4 (2003) on adolescent health and development in the context of the Convention of the Rights of the Child, para. 20), and given their specific vulnerability to maltreatment, the Committee considers that article 19 applies also to children under the age of 18 who have attained majority or emancipation through early marriage and/or forced marriage.
BI A CK N D E X
171
U PV EDR A TED SION their “permanent” primary caregiver (such as a parent or guardian) or a proxy or “temporary” caregiver (such as a teacher or youth group leader) for periods of time which are short-term, long-term, repeated or once only. Children will often pass between caregiving settings with great frequency and flexibility but their safety in transit between these settings is still the responsibility of the primary caregiver – either directly, or via coordination and cooperation with a proxy caregiver (for example to and from school or when fetching water, fuel, food or fodder for animals). Children are also considered to be “in the care of” a primary or proxy caregiver while they are physically unsupervised within a care setting, for example while playing out of sight or surfing the Internet unsupervised. Usual care settings include family homes, schools and other educational institutions, early childhood care settings, after-school care centres, leisure, sports, cultural and recreational facilities, religious institutions and places of worship. In medical, rehabilitative and care facilities, at the workplace and in justice settings children are in the custody of professionals or State actors, who must observe the best interests of the child and ensure his or her rights to protection, well-being and development. A third type of setting in which children’s protection, well-being and development also must be secured, are neighbourhoods, communities and camps or settlements for refugees and people displaced by conflict and/or natural disasters14. 35. Children without obvious primary or proxy caregivers. Article 19 also applies to children without a primary or proxy caregiver or another person who is entrusted with the protection and well-being of the child such as, for instance, children in child-headed households, children in street situations, children of migrating parents or unaccompanied children outside their country of origin15. The State party is obliged to take responsibility as the de facto caregiver or the one “who has the care of the child”, even if these children are not within the context of physical care settings such as foster homes, group homes or NGO facilities. The State party is under the obligation “to ensure the child such protection and care as is necessary for his or her well-being” (art. 3, para. 2) and to “ensure alternative care” to “a child temporarily or permanently deprived of his or her family environment” (art. 20). There are different ways to guarantee the rights of these children, preferably in family-like care arrangements, which must be carefully examined with respect to the risk of these children being exposed to violence. 36. Perpetrators of violence. Children may be subjected to violence by primary or proxy caregivers and/or by others against whom their caregiver does provide protection (for example neighbours, peers and strangers). Furthermore, children are at risk of being exposed to violence in many settings where professionals and State actors have often misused their power over children, such as schools, residential homes, police stations or justice institutions. All of these conditions fall under the scope of article 19, which is not limited to violence perpetrated solely by caregivers in a personal context. 14 The United Nations study on violence against children describes settings in which violence against children occurs; see also the detailed guidance available in the Guidelines for the Alternative Care of Children. 15 As defined in the Committee’s general comment No. 6 (2005), para. 7. 172
3. “SHALL TAKE …”
37. “Shall take” is a term which leaves no leeway for the discretion of States parties. Accordingly, States parties are under strict obligation to undertake “all appropriate measures” to fully implement this right for all children.
4. “ALL APPROPRIATE LEGISLATIVE, ADMINISTRATIVE, SOCIAL AND EDUCATIONAL MEASURES”
38. General measures of implementation and monitoring. The Committee draws the attention of States parties to general comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child16. The Committee also refers States parties to its general comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child. These measures of implementation and monitoring are essential to bring article 19 into reality. 39. “All appropriate...measures”. The term “appropriate” refers to the broad range of measures cutting across all sectors of Government, which must be used and be effective in order to prevent and respond to all forms of violence. “Appropriate” cannot be interpreted to mean acceptance of some forms of violence. An integrated, cohesive, interdisciplinary and coordinated system is required, which incorporates the full range of measures identified in article 19, paragraph 1, across the full range of interventions listed in paragraph 2. Isolated programmes and activities which are not integrated into sustainable and coordinated government policy and infrastructures will have limited effects. Child participation is essential in the development, monitoring and evaluation of the measures outlined here. 40. Legislative measures refer to both legislation, including the budget, and the implementing and enforcing measures. They comprise national, provincial and municipal laws and all relevant regulations, which define frameworks, systems, mechanisms and the roles and responsibilities of concerned agencies and competent officers. 41. State parties that have not yet done so must: a) Ratify the two Optional Protocols to the Convention, and other international and regional human rights instruments that provide protection for children, including the Convention on the Rights of Persons with Disabilities and its Optional Protocol and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; b) Review and withdraw declarations and reservations contrary to the object and purpose of the Convention or otherwise contrary to international law; 16 See in particular paras. 9 (range of measures required), 13 and 15 (regarding withdrawal and eligibility of reservations), and 66 and 67 (dissemination of the Convention).
BACK
KEYWORDS INDEX
U PV EDR A TED SION c) Strengthen cooperation with treaty bodies and other human rights mechanisms; d) Review and amend domestic legislation in line with article 19 and its implementation within the holistic framework of the Convention, establishing a comprehensive policy on child rights and ensuring absolute prohibition of all forms of violence against children in all settings and effective and appropriate sanctions against perpetrators17; e) Provide adequate budget allocations for the implementation of legislation and all other measures adopted to end violence against children; f) Ensure the protection of child victims and witnesses and effective access to redress and reparation; g) Ensure that relevant legislation provides adequate protection of children in relation to media and ICT; h) Establish and implement social programmes to promote optimal positive child-rearing by providing, through integrated services, necessary support for the child and for those who have the care of the child; i) Enforce law and judicial procedures in a child-friendly way, including remedies available to children when rights are violated; j) Establish and support an independent national institution of children’s rights. 42. Administrative measures should reflect governmental obligations to establish policies, programmes, monitoring and oversight systems required to protect the child from all forms of violence. These include: a) At the national and sub-national government levels: i) Establishing a government focal point to coordinate child protection strategies and services; ii) Defining the roles, responsibilities and relationships between stakeholders on inter-agency steering committees with a view to their effectively managing, monitoring and holding accountable the implementing bodies at national and subnational levels; iii) Ensuring that the process of decentralizing services safeguards their quality, accountability and equitable distribution; iv) Implementing systematic and transparent budgeting processes in order to make the best use of allocated resources for child protection, including prevention; v) Establishing a comprehensive and reliable national data collection system in order to ensure systematic monitoring and evaluation of systems (impact analyses), services, programmes and outcomes based on indicators aligned with universal standards, and adjusted for and guided by locally established goals and objectives; vi) Providing independent national human rights institutions with support and promoting the establishment of specific child rights mandates such as child rights ombudsmen where these do not yet exist18. b) At the levels of governmental, professional and civil society institutions: i)
Developing
and
implementing
(through
participatory processes which encourage ownership and sustainability): policies;
a. Intra- and inter-agency child protection
b. Professional ethics codes, protocols, memoranda of understanding and standards of care for all childcare services and settings (including daycare centres, schools, hospitals, sport clubs and residential institutions etc.); ii) Involving academic teaching and training institutions with regard to child protection initiatives; iii) Promoting good research programmes. Social measures should reflect governmental commitment to fulfilling child protection rights and provide for basic and targeted services. They can be initiated and implemented by both State and civil society actors under the responsibility of the State. Such measures include: a) Social policy measures to reduce risk and prevent violence against children, for example: i) Integration of child caregiving and protection measures into mainstream systems of social policy; ii) Identification and prevention of factors and circumstances which hinder vulnerable groups’ access to services and full enjoyment of their rights (including indigenous and minority children and children with disabilities, among others); iii) Poverty reduction strategies, including financial and social support to families at risk; iv) Public health and safety, housing, employment and education policies; v) Improved access to health, social welfare and justice services; vi) “Child-friendly cities” planning; vii) Reduced demand for and access to alcohol, illegal drugs and weapons; viii) Collaboration with the mass media and the ICT industry to devise, promote and enforce global standards for child caregiving and protection; ix) Development of guidelines for protecting children from information and material produced by mass media disrespecting the human dignity and integrity of the child, abolishing stigmatizing language, refraining from the dissemination of re-victimizing reports on events in family or elsewhere affecting a child and promoting professional methods of investigation based on the use of diverse sources which can be examined by all parties involved; x) Opportunities for children to express their view and expectations in the media and be not only engaged in children’s programmes, but also involved in the production and transmission of all kinds of information, including as reporters, analysts and commentators in order to support an adequate image of children and childhood in the public. b) Social programmes to support the child individually
BI A CK N D E X
173
U PV EDR A TED SION and to support the child’s family and other caregivers to provide optimal positive child-rearing, for example: i) For children: childcare, early child development and after-school care programmes; child and youth groups and clubs; counselling support to children experiencing difficulties (including self-harm); 24-hour toll-free child helplines with trained personnel; foster family services which are subject to periodic review; ii) For families and other caregivers: communitybased mutual-help groups to address psychosocial and economic challenges (for example parenting and microcredit groups); welfare programmes to support families’ standard of living, including direct allowances to children at a certain age; counselling support to caregivers having difficulties with employment, housing and/or child-rearing; therapeutic programmes (including mutual help groups) to assist caregivers with challenges related to domestic violence, addictions to alcohol or drugs or with other mental health needs. 43. Educational measures should address attitudes, traditions, customs and behavioural practices which condone and promote violence against children. They should encourage open discussion about violence, including the engagement of media and civil society. They should support children’s life skills, knowledge and participation and enhance the capacities of caregivers and professionals in contact with children. They can be initiated and implemented by both State and civil society actors under the responsibility of the State. Specific examples include, but are not limited to: a) For all stakeholders: public information programmes, including awareness campaigns, via opinion leaders and the media, to promote positive child-rearing and to combat negative societal attitudes and practices which condone or encourage violence; dissemination of the Convention, the present general comment and State party reports in child friendly and accessible formats; supporting measures to educate and advise on protection in the context of ICTs; b) For children: provision of accurate, accessible and age-appropriate information and empowerment on life skills, self-protection and specific risks, including those relating to ICTs and how to develop positive peer relationships and combat bullying; empowerment regarding child rights in general and in particular on the right to be heard and to have their views taken seriously through the school curriculum and in other ways; c) For families and communities: education on positive child-rearing for parents and caregivers; provision of accurate and accessible information on specific risks and how to listen to children and take their views seriously; d) For professionals and institutions (government and civil society): i) Providing initial and in-service general and rolespecific training (including inter-sectoral where necessary) on a child rights approach to article 19 and its application in practice, for all professionals and non-professionals working with, and for, children (including teachers at all levels of the educational system, social workers, medical doctors, nurses and other health professionals, 174
psychologists, lawyers, judges, police, probation and prison officers, journalists, community workers, residential caregivers, civil servants and public officials, asylum officers and traditional and religious leaders); ii) Developing officially recognized certification schemes in association with educational and training institutions and professional societies in order to regulate and acknowledge such training; iii) Ensuring that the Convention is part of the educational curriculum of all professionals expected to work with and for children; iv) Supporting “child-friendly schools” and other initiatives which include, inter alia, respect for children’s participation; v) Promoting research on child caregiving and protection.
B. ARTICLE 19, PARAGRAPH 2 “such protective include…”
measures
should,
as
appropriate,
45. Range of interventions. A holistic child protection system requires the provision of comprehensive and integrated measures across the full range of stages identified in article 19, paragraph 2, taking account of the socio-cultural traditions and legal system of the respective State party19. 46. Prevention. The Committee emphasizes in the strongest terms that child protection must begin with proactive prevention of all forms of violence as well as explicitly prohibit all forms of violence. States have the obligation to adopt all measures necessary to ensure that adults responsible for the care, guidance and upbringing of children will respect and protect children’s rights. Prevention includes public health and other measures to positively promote respectful child-rearing, free from violence, for all children, and to target the root causes of violence at the levels of the child, family, perpetrator, community, institution and society. Emphasis on general (primary) and targeted (secondary) prevention must remain paramount at all times in the development and implementation of child protection systems. Preventive measures offer the greatest return in the long term. However, commitment to prevention does not lessen States’ obligations to respond effectively to violence when it occurs. 47. Prevention measures include, but are not limited to: a) For all stakeholders: i) Challenging attitudes which perpetuate the tolerance and condoning of violence in all its forms, including gender, race, colour, religion, ethnic or social origin, disability and other power imbalances; ii) Disseminating information regarding the Convention’s holistic and positive approach to child protection through creative public campaigns, schools 19 The detailed guidance available in the Guidelines for the Alternative Care of Children should also be taken into account at each stage.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
and peer education, family, community and institutional educational initiatives, professionals and professional groups, NGOs and civil society; iii) Developing partnerships with all sectors of society, including children themselves, NGOs and the media; b) For children: i) Registering all children to facilitate their access to services and redress procedures; ii) Supporting children to protect themselves and their peers through awareness of their rights and development of social skills as well as age-appropriate empowerment strategies; iii) Implementing “mentoring” programmes that engage responsible and trusted adults in the lives of children identified as needing extra support beyond that provided by their caregivers; c) For families and communities: i) Supporting parents and caregivers to understand, embrace and implement good child-rearing, based on knowledge of child rights, child development and techniques for positive discipline in order to support families’ capacity to provide children with care in a safe environment; ii) Providing pre- and post-natal services, home visitation programmes, quality early-childhood development programmes, and income-generation programmes for disadvantaged groups; iii) Strengthening the links between mental health services, substance abuse treatment and child protection services; iv) Providing respite programmes and family support centres for families facing especially difficult circumstances; v) Providing shelters and crisis centres for parents (mostly women) who have experienced violence at home and their children; vi) Providing assistance to the family by adopting measures that promote family unity and ensure for children the full exercise and enjoyment of their rights in private settings, abstaining from unduly interfering in children’s private and family relations, depending on circumstances20. d) For professionals and institutions (Government and civil society): i) Identifying prevention opportunities and informing policy and practice on the basis of research studies and data collection; ii) Implementing, through a participatory process, rights-based child protection policies and procedures and professional ethics codes and standards of care; 20 Human Rights Committee, general comment No. 17 (1989) on the rights of the child; European Court of Human Rights, Olsson vs. Sweden (No. 1), Judgement of 24 March 1988, Series A No. 130, para. 81; Inter-American Court of Human Rights, Velásquez Rodríguez vs. Honduras, Judgement on the Merits, 10 January 1989, Series C, No. 3, para. 172.
iii) Preventing violence in care and justice settings by, inter alia, developing and implementing communitybased services in order to make use of institutionalization and detention only as a last resort and only if in the best interest of the child. 48. Identification21. This includes identifying risk factors for particular individuals or groups of children and caregivers (in order to trigger targeted prevention initiatives) and identifying signs of actual maltreatment (in order to trigger appropriate intervention as early as possible). This requires that all who come in contact with children are aware of risk factors and indicators of all forms of violence, have received guidance on how to interpret such indicators, and have the necessary knowledge, willingness and ability to take appropriate action (including the provision of emergency protection). Children must be provided with as many opportunities as possible to signal emerging problems before they reach a state of crisis, and for adults to recognize and act on such problems even if the child does not explicitly ask for help. Particular vigilance is needed when it comes to marginalized groups of children who are rendered particularly vulnerable due to their alternative methods of communicating, their immobility and/or the perceived view that they are incompetent, such as children with disabilities. Reasonable accomodation should be provided to ensure that they are able to communicate and signal problems on an equal basis with others. 49. Reporting22. The Committee strongly recommends that all States parties develop safe, well-publicized, confidential and accessible support mechanisms for children, their representatives and others to report violence against children, including through the use of 24hour toll-free hotlines and other ICTs. The establishment of reporting mechanisms includes: a) providing appropriate information to facilitate the making of complaints; b) participation in investigations and court proceedings; c) developing protocols which are appropriate for different circumstances and made widely known to children and the general public; d) establishing related support services for children and families; and (e) training and providing ongoing support for personnel to receive and advance the information received through reporting systems. Reporting mechanisms must be coupled with, and should present themselves as help-oriented services offering public health and social support, rather than as triggering responses which are primarily punitive. Children’s right to be heard and to have their views taken seriously must be respected. In every country, the reporting of instances, suspicion or risk of violence should, at a minimum, be required by professionals working directly with children. When reports are made in good faith, processes must be in place to ensure the protection of the professional making the report. 50. Referral. The person receiving the report should have clear guidance and training on when and how to refer the issue to whichever agency is responsible for coordinating the response. Following this, intersectoral referrals may be made by trained professionals and administrators 21 Paragraphs 48 ff can also be applied to processes in informal and customary systems of justice. 22 See also the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime.
BI A CK N D E X
175
U PV EDR A TED SION when children are found to be in need of protection (immediate or longer-term) and specialized support services. Professionals working within the child protection system need to be trained in inter-agency cooperation and protocols for collaboration. The process will involve: (a) a participatory, multi-disciplinary assessment of the shortand long-term needs of the child, caregivers and family, which invites and gives due weight to the child’s views as well as those of the caregivers and family; (b) sharing of the assessment results with the child, caregivers and family; (c) referral of the child and family to a range of services to meet those needs; and (d) follow-up and evaluation of the adequateness of the intervention. 51. Investigation. Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. Extreme care must be taken to avoid subjecting the child to further harm through the process of the investigation. Towards this end, all parties are obliged to invite and give due weight to the child’s views. 52. Treatment. “Treatment” is one of the many services needed to “promote physical and psychological recovery and social reintegration” for children who have experienced violence, and must take place “in an environment which fosters the health, self-respect and dignity of the child” (art. 39). In this respect attention must be given to: (a) inviting and giving due weight to the child’s views; (b) the safety of the child; (c) the possible need for her or his immediate safe placement; and (d) the predictable influences of potential interventions on the child’s long-term wellbeing, health and development. Medical, mental health, social and legal services and support may be required for children upon identification of abuse, as well as longerterm follow-up services. A full range of services, including family group conferencing and other similar practices, should be made available. Services and treatment for perpetrators of violence, especially child perpetrators, are also needed. Children who are aggressive towards other children have often been deprived of a caring family and community environment. They must be regarded as victims of their child-rearing conditions, which imbue them with frustration, hatred and aggression. Educational measures must have priority and be directed to improve their pro-social attitudes, competencies and behaviours. Simultaneously, the life conditions of these children must be examined in order to promote their care and support and that of other children in the family and neighbourhood. In terms of children who harm themselves, it is recognized that this is a result of severe psychological distress and may be a result of violence by others. Self-harm should not be criminalized. Interventions must be supportive and not in any way punitive. 53. Follow-up. The following must always be clear: (a) who has responsibility for the child and family from reporting and referral all the way through to follow-up; (b) the 176
aims of any course of action taken – which must be fully discussed with the child and other relevant stakeholders; (c) the details, deadlines for implementation and proposed duration of any interventions; and (d) mechanisms and dates for the review, monitoring and evaluation of actions. Continuity between stages of intervention is essential and this may best be achieved through a case management process. Effective help requires that actions, once decided through a participatory process, must not be subject to undue delay. The follow-up must be understood in the context of article 39 (recovery and reintegration), article 25 (periodic review of treatment and placements), article 6, paragraph 2 (right to development) and article 29 (aims of education which present intentions and aspirations for development). Contact of the child with both parents should be ensured in accordance with article 9, paragraph 3, unless this is contrary to the best interests of the child. 54. Judicial involvement23. At all times and in all cases, due process must be respected. In particular, the protection and the further development of the child and his or her best interests (and the best interests of other children where there is a risk of a perpetrator reoffending) must form the primary purpose of decision-making, with regard given to the least intrusive intervention as warranted by the circumstances. Furthermore, the Committee recommends the respect of the following guarantees: a) Children and their parents should be promptly and adequately informed by the justice system or other competent authorities (such as the police, immigration, or educational, social or health-care services); b) Child victims of violence should be treated in a child-friendly and sensitive manner throughout the justice process, taking into account their personal situation, needs, age, gender, disability and level of maturity and fully respecting their physical, mental and moral integrity; c) Judicial involvement should be preventive where possible, proactively encouraging positive behaviour as well as prohibiting negative behaviour. Judicial involvement should be an element of a coordinated and integrated approach across sectors, supporting and facilitating other professionals to work with children, caregivers, families and communities, and facilitating access to the full range of child caregiving and protection services available; d) In all proceedings involving children victims of violence, the celerity principle must be applied, while respecting the rule of law. 55. Judicial involvement may consist of the following: a) Differentiated and mediated responses such as family group conferencing, alternative disputeresolution mechanisms, restorative justice and kith and kin agreements (where processes are human-rights respecting, accountable and managed by trained facilitators); b) Juvenile or family court intervention leading to a specific measure of child protection; c) Criminal law procedures, which must be strictly 23 See also: Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted on 17 November 2010; Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime; and General Assembly resolution 65/213.
BACK
KEYWORDS INDEX
U PV EDR A TED SION applied in order to abolish the widespread practice of de jure or de facto impunity, in particular of State actors; d) Disciplinary or administrative proceedings against professionals for neglectful or inappropriate behaviour in dealing with suspected cases of child maltreatment (either internal proceedings in the context of professional bodies for breaches of codes of ethics or standards of care, or external proceedings); e) Judicial orders to ensure compensation and rehabilitation for children who have suffered from violence in its various forms. 56. When appropriate, juvenile or family specialized courts and criminal procedures should be established for child victims of violence. This could include the establishment of specialized units within the police, the judiciary and the prosecutor’s office with the possibility of providing accomodations in the judicial process to ensure equal and fair participation of children with disabilities. All professionals working with and for children and involved in such cases should receive specific interdisciplinary training on the rights and needs of children of different age groups, as well as on proceedings that are adapted to them. While implementing a multidisciplinary approach, professional rules on confidentiality should be respected. The decision to separate a child from his or her parent(s) or family environment must be made only when it is in the child’s best interests (art. 9 and art. 20, para. 1). However, in cases of violence where perpetrators are primary caregivers, within the child rights safeguards listed above, and depending on the severity and other factors, intervention measures focusing on social and educational treatment and a restaurative approach are often preferable to a purely punitive judicial involvement. Effective remedies should be available, including compensation to victims and access to redress mechanisms and appeal or independent complaint mechanisms. 57. Effective procedures. Such protective measures as mentioned in article 19, paragraphs 1 and 2, and as integrated into a systems-building approach (see para. 71), require “effective procedures” to ensure their enforcement, quality, relevance, accessibility, impact and efficiency. Such procedures should include: a) Inter-sectoral coordination, mandated by protocols and memorandums of understanding as necessary; b) The development and implementation of systematic and ongoing data collection and analysis; c) The development and implementation of a research agenda; and d) The development of measurable objectives and indicators in relation to policies, processes and outcomes for children and families. 58. Outcome indicators should focus on the child’s positive development and well-being as a rights-bearing person, beyond a purely narrow focus on incidence, prevalence and types or extent of violence. Child death reviews, critical injury reviews, inquests and systemic reviews must also be taken into account when identifying the underlying causes of violence and in recommending corrective courses of actions. Research must build on the existing body of
international and national child protection knowledge and benefit from interdisciplinary and international collaboration in order to maximize complementarity. (See also para. 72 ( j) on accountability in relation to national coordinating frameworks).
IN TERPRETATION OF ARTICLE 19 IN THE BROADER CONTEXT OF THE CONVENTION
59. Definition of a child rights approach. Respect for the dignity, life, survival, well-being, health, development, participation and non-discrimination of the child as a rightsbearing person should be established and championed as the pre-eminent goal of States parties’ policies concerning children. This is best realized by respecting, protecting and fulfilling all of the rights in the Convention (and its Optional Protocols). It requires a paradigm shift away from child protection approaches in which children are perceived and treated as “objects” in need of assistance rather than as rights holders entitled to non-negotiable rights to protection. A child rights approach is one which furthers the realization of the rights of all children as set out in the Convention by developing the capacity of duty bearers to meet their obligations to respect, protect and fulfil rights (art. 4) and the capacity of rights holders to claim their rights, guided at all times by the rights to nondiscrimination (art. 2), consideration of the best interests of the child (art. 3, para. 1), life, survival and development (art. 6), and respect for the views of the child (art. 12). Children also have the right to be directed and guided in the exercise of their rights by caregivers, parents and community members, in line with children’s evolving capacities (art. 5). This child rights approach is holistic and places emphasis on supporting the strengths and resources of the child him/herself and all social systems of which the child is a part: family, school, community, institutions, religious and cultural systems. 60. Article 2 (non-discrimination). The Committee stresses that States parties shall take adequate measures to assure to every child the right to protection from all forms of violence “without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. This includes discrimination based on prejudices towards commercially sexually exploited children, children in street situations or children in conflict with the law or based on children’s clothing and behaviour. States parties must address discrimination against vulnerable or marginalized groups of children, such as outlined in paragraph 72 (g) of the present general comment, and make proactive efforts to ensure that such children are assured their right to protection on an equal basis with all other children. 61. Article 3 (best interests of the child). The Committee emphasizes that the interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms
BI A CK N D E X
177
U PV EDR A TED SION
of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention. In particular, the Committee maintains that the best interests of the child are best served through: a) Prevention of all forms of violence and the promotion of positive child-rearing, emphasizing the need for a focus on primary prevention in national coordinating frameworks; b) Adequate investment in human, financial and technical resources dedicated to the implementation of a child rights-based and integrated child protection and support system. 62. Article 6 (life, survival and development). Protection from all forms of violence must be considered not only in terms of the child’s right to “life” and “survival”, but also in terms of their right to “development”, which must be interpreted in line with the overall goal of child protection. Thus, the obligation of the State party includes comprehensive protection from violence and exploitation which would jeopardize a child’s right to life, survival and development. The Committee expects States to interpret “development” in its broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development. Implementation measures should be aimed at achieving the optimal development for all children. 63. Article 12 (right to be heard). The Committee is of the opinion that child participation promotes protection and child protection is key to participation. The child’s right to be heard commences already with very young children who are particularly vulnerable to violence. Children’s views must be invited and given due weight as a mandatory step at every point in a child protection process. The child’s right to be heard has particular relevance in situations of violence (see the Committee’s general comment No. 12 (2009), paras. 118 ff). With regard to family and child-rearing, the Committee expressed that this right plays a preventive role against all forms of violence in the home and family. The Committee furthermore underlines the importance of children’s participation in the development of prevention strategies in general and in school, in particular in the elimination and prevention of bullying, and other forms of violence in school. Initiatives and programmes that are aimed at strengthening children’s own capacities to eliminate violence should be supported. As the experience of violence is inherently disempowering, sensitive measures are needed to ensure that child protection interventions do not further disempower children but rather contribute positively to their recovery and reintegration via carefully facilitated participation. The Committee notes that barriers to participation are faced by particularly marginalized and/or discriminated groups. Addressing these barriers is especially relevant for child protection, as such children are often among those most affected by violence. 178
64. The following two articles of the Convention also have all-embracing relevance which gives them particular significance for the implementation of article 19. 65. Article 4 (appropriate measures). Article 4 obliges States parties to undertake all appropriate measures to implement all the rights in the Convention, including article 19. In applying article 4 of the Convention, it must be noted that the right to protection from all forms of violence outlined in article 19 is a civil right and freedom. Implementation of article 19 is therefore an immediate and unqualified obligation of States parties. In the light of article 4, whatever their economic circumstances, States are required to undertake all possible measures towards the realization of the rights of the child, paying special attention to the most disadvantaged groups (see the Committee’s general comment No. 5, para. 8). The article stresses that available resources must be utilized to the maximum extent. 66. Article 5 (direction and guidance consistent with evolving capacities). Implementation of article 19 requires recognition of, and support for, the primary importance of parents, extended families, legal guardians and community members in the caregiving and protection of children and the prevention of violence. This approach is consistent with article 5, which promotes respect for the responsibilities, rights and duties of caregivers to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the Convention (including in article 19). (See also para. 72 (d) on the primacy of familes in the context of national coordinating frameworks and other articles relevant to families). 67. Other relevant articles. The Convention contains numerous articles which relate explicitly or implicitly to violence and child protection. Article 19 should be read in conjunction with these articles. These comprehensive references demonstrate the need to take account of the pervasive threat to the implementation of child rights by violence in all its forms and to ensure the protection of children in all situations of life and development.
NATIONAL
COORDINATING FRAMEWORK ON VIOLENCE AGAINST CHILDREN
BACK
KEYWORDS INDEX
U PV EDR A TED SION 68. Beyond national plans of action. The Committee recognizes that many national plans of action adopted by States parties to implement the rights of the child include measures to prohibit, prevent and eliminate all forms of violence against children. Such plans of action, while contributing to more enjoyment by children of their rights, have nevertheless faced many challenges in their implementation, monitoring, evaluation and followup. For example, they have often lacked links with the overall development policy, programmes, budget and coordinating mechanisms. In order to establish a more feasible and flexible instrument, the Committee is proposing a “coordinating framework on violence against children” for all child rights-based measures to protect children from violence in all its forms and to support a protective environment24. Such a coordinating framework can be used in place of national plans of action where these do not yet exist or where they are proving unwieldy. Where national plans of action are being effectively implemented already, the coordinating framework can nonetheless complement those efforts, stimulate discussion and generate new ideas and resources to improve their functioning. 69. National coordinating framework on violence against children. This coordinating framework can provide a common frame of reference and a mechanism for communication among Government ministries and also for State and civil society actors at all levels with regard to needed measures, across the range of measures and at each stage of intervention identified in article 19. It can promote flexibility and creativity and allow for the development and implementation of initiatives led simultaneously by both Government and community, but which are nonetheless contained within an overall cohesive and coordinated framework. In previous reccommendations and general comments, including its general comment No. 5 on general measures of implementation, the Committee has already urged States parties to develop plans and strategies for specific aspects of the Convention (for example juvenile justice or early childhood). It is in this context that the Committee recommends the development of a national coordinating framework on protection against all forms of violence, including comprehensive prevention measures. 70. Different starting points. The Committee acknowledges that protecting children from all forms of violence is highly challenging in most countries and that States parties are designing and implementing measures from very different starting points, in terms of existing legal, institutional and service infrastructures, cultural customs and professional competencies, as well as levels of resources. 71. The process of developing a national coordinating framework. There is no single model for such coordinating frameworks for freedom from all forms of violence. Some countries have invested in a discrete system of protecting children whereas others prefer to integrate protection issues into mainstream systems of implementing the rights of children. Experience shows that the process of developing a system is essential to its successful implementation. Skilful facilitation is required to ensure the participation of and ownership by senior representatives of all stakeholder groups, possibly through a multidisciplinary working group which has appropriate decision-making power, which
meets regularly and which is prepared to be ambitious. A system of prevention and protection against all forms of violence should build on the strengths in existing formal and informal structures, services and organizations. Gaps should be identified and filled, based on the obligations outlined in article 19 and the Convention more broadly, and in other international and regional human rights instruments, and supported by the guidance provided in the United Nations study on violence against children, the present general comment and additional implementation supports. National planning should be a transparent and inclusive process, with full disclosure to the general public and assurance of the involvement of Government, NGOs, research and professional practice experts, parents and children. It should be accessible and understandable to both children and adults. The national coordinating framework should be fully costed and financed, including human and technical resources, and presented, if possible, within the national child budget. 72. Elements to be mainstreamed into national coordinating frameworks. The following elements need to be mainstreamed across the measures (legislative, administrative, social and educational) and stages of intervention (from prevention through to recovery and reintegration): a) Child rights approach. This approach is based on the declaration of the child as a rights holder and not a beneficiary of benevolent activities of adults. It includes respecting and encouraging consultation and cooperation with, and the agency of, children in the design, implementation, monitoring and evaluation of the coordinating framework and specific measures therein, taking account of the age and evolving capacities of the child or children; b) The gender dimensions of violence against children. States parties should ensure that policies and measures take into account the different risks facing girls and boys in respect of various forms of violence in various settings. States should address all forms of gender discrimination as part of a comprehensive violence-prevention strategy. This includes addressing gender-based stereotypes, power imbalances, inequalities and discrimination which support and perpetuate the use of violence and coercion in the home, in school and educational settings, in communities, in the workplace, in institutions and in society more broadly. Men and boys must be actively encouraged as strategic partners and allies, and along with women and girls, must be provided with opportunities to increase their respect for one another and their understanding of how to stop gender discrimination and its violent manifestations; c) Primary (general) prevention. See paragraph 42 of the present general comment for details; d) The primary position of families in child caregiving and protection strategies25. Families (including extended families and other forms of family-type care arrangements) have the greatest potential to protect children and to prevent violence. Families can also support and empower children to protect themselves. The need to strengthen family life, support families and work with families with
BI A CK N D E X
179
U PV EDR A TED SION
challenges must therefore be a priority child protection activity at every stage of intervention, particularly prevention (through establishing good child caregiving) and in early intervention. However, the Committee also recognizes that much of the violence experienced by children, including sexual abuse, takes place within a family context and stresses the necessity of intervening in families if children are exposed to violence by family members; e) Resilience and protective factors. It is of critical importance to understand resilience and protective factors, i.e. internal and external strengths and supports which promote personal security and reduce abuse and neglect and their negative impact. Protective factors include stable families; nurturing child-rearing by adults who meet the child’s physical and psychosocial needs; positive nonviolent discipline; secure attachment of the child to at least one adult; supportive relationships with peers and others (including teachers); a social environment that fosters prosocial, non-violent and non-discriminatory attitudes and behaviours; high levels of community social cohesion; and thriving social networks and neighbourhood connections; f) Risk factors. Proactive, tailored measures need to be taken to reduce the risk factors to which individual children or groups of children may be exposed in general or in particular contexts. This includes parental risk factors such as substance abuse, mental health problems and social isolation as well as family risk factors such as poverty, unemployment, discrimination and marginalization. At a universal level all children aged 0-18 years are considered vulnerable until the completion of their neural, psychological, social and physical growth and development. Babies and young children are at higher risk due to the immaturity of their developing brain and their complete dependency on adults. Both girls and boys are at risk, but violence often has a gender component; g) Children in potentially vulnerable situations. Groups of children which are likely to be exposed to violence include, but are not limited to, children: not living with their biological parents, but in various forms of alternative care; not registered at birth; in street situations; in actual or perceived conflict with the law; with physical disabilities, sensory disabilities, learning disabilities, psychosocial disabilities and congenital, acquired and/or chronic illnesses or serious behavioural problems; who are indigenous26 and from other ethnic minorities; from minority religious or linguistic groups; who are lesbian, gay, transgender or transsexual; at risk of harmful traditional practices; in early marriage (especially girls, and especially but not exclusively forced marriage); in hazardous child labour, including the worst forms; who are on the move as migrants or refugees, or who are displaced and/or trafficked; who have already experienced violence; who experience and witness violence 26 In some societies, in contrast to non-indigenous families, “neglect” as distinct from “abuse” is the primary reason leading to the removal of indigenous children from their families. Non-punitive family support services and interventions directly addressing causes (such as poverty, housing and historical circumstances) are often more appropriate. Specific efforts are required to address discrimination in the provision of services and the range of intervention options available to indigenous and other minority communities. 180
in the home and in communities; in low socio-economic urban environments, where guns, weapons, drugs and alcohol may be easily available; living in accident- or disaster-prone areas or in toxic environments; affected by HIV/AIDS or who are themselves HIV infected; who are malnourished; looked after by other children; who are themselves carers and heads of households; born to parents who are themselves still under 18; who are unwanted, born prematurely or part of a multiple birth; hospitalized with inadequate supervision or contact with caregivers; or exposed to ICTs without adequate safeguards, supervision or empowerment to protect themselves. Children in emergencies are extremely vulnerable to violence when, as a consequence of social and armed conflicts, natural disasters and other complex and chronic emergencies, social systems collapse, children become separated from their caregivers and caregiving and safe environments are damaged or even destroyed; h) Resource allocation. Human, financial and technical resources needed across different sectors must be allocated to the maximum extent of available resources. Robust monitoring mechanisms must be developed and implemented to ensure accountability regarding allocation of budgets and their efficient utilization; i) Coordination mechanisms. Mechanisms must be explicitly outlined to ensure effective coordination at central, regional and local levels, between different sectors and with civil society, including the empirical research community. These mechanisms must be supported by the administrative measures outlined above; j) Accountability. It must be ensured that States parties, national and local agencies and organizations, and relevant civil society stakeholders proactively and cooperatively establish and apply standards, indicators, tools, and systems of monitoring, measurement and evaluation to fulfil their obligations and commitments to protect children from violence. The Committee has consistently expressed its support for systems of accountability, including in particular through data collection and analysis, indicator construction, monitoring and evaluation as well as support for independent human rights institutions. The Committee recommends that States parties publish an annual report on progress made with regard to the prohibition, prevention and elimination of violence, submit it to parliament for consideration and discussion, and invite all relevant stakeholders to respond to the information contained therein.
RESOURCES
FOR IMPLEMENTATION AND THE NEED FOR INTERNATIONAL COOPERATION 73. States parties’ obligations. In the light of States parties’ obligations under articles 4 and 19, inter alia, the
BACK
KEYWORDS INDEX
U PV EDR A TED SION Committee considers that resource constraints cannot provide a justification for a State party’s failure to take any, or enough, of the measures that are required for child protection. States parties are therefore urged to adopt comprehensive, strategic and time-bound coordinating frameworks for child caregiving and protection. In particular the Committee highlights the necessity to consult with children in the development of these strategies, frameworks and measures. 74. Sources of support. Within the context of different starting points highlighted in paragraph 70, and on the understanding that budgets at national and decentralized levels should be the primary source of funds for child caregiving and protection strategies, the Committee draws the attention of States parties to the avenues of international cooperation and assistance outlined in articles 4 and 45 of the Convention. The Committee calls upon the following partners to support, both financially and technically, child protection programmes, including training, which take full account of the requirements stipulated in article 19 and the Convention more broadly27: States parties providing development cooperation; donor institutions (including the World Bank, private sources and foundations); United Nations agencies and organizations; and other international and regional bodies and organizations. This financial and technical support should be provided systematically through strong and equitable partnerships, at the national and international levels. Child rights-based protection programmes should be one of the main components in assisting sustainable development in countries receiving international assistance. The Committee also encourages such bodies to continue to work with the Committee, the Special Representative of the Secretary-General on Violence against Children and other international and regional human rights mechanisms to advance this goal. 75. Resources needed at the international level. Investment is also needed in the following areas at the international level to assist States parties to fulfil their obligations in relation to article 19: a) Human resources: improved communication, cooperation and individual exchange within and between professional associations (for example medical, mental health, social work, legal, education, child maltreatment, academic/research, child rights and training organizations/ institutions); improved communication and cooperation within and between civil society groups (for example research communities, NGOs, child-led organizations, faith-based organizations, organizations of persons with disabilities, community and youth groups, and individual experts involved in the development and exchange of knowledge and practice);
in order for economists, researchers and States parties to fully measure the costs of implementing holistic child protection systems (with an emphasis on primary prevention) versus the costs of managing the direct and indirect (including intergenerational) impact of violence at the individual, community, national and even international levels; and reviews by international financial institutions of “their policies and activities to take account of the impact they may have on children”; c) Technical resources: evidence-based indicators, systems, models (including model legislation), tools, guidelines, protocols and practice standards for use by communities and professionals, with guidance on their adaptation to different contexts; a platform for systematic sharing and accessing of information (knowledge and practice); universally established clarity and transparency in budgeting for child rights and child protection, as well as in outcome monitoring of child protection during up and down cycles of economies and challenging circumstances (technical assistance should be established over time, through information, models and related training). 76. Regional and international cross-border cooperation. In addition to development assistance, cooperation is also needed to address child protection issues which cut across national borders such as: cross-border movement of children – either unaccompanied or with their families – either voluntarily or under duress (for example due to conflict, famine, natural disasters or epidemics) which can put children at risk of harm; cross-border trafficking of children for labour, sexual exploitation, adoption, removal of body parts or other purposes; conflict which cuts across borders and which may compromise a child’s safety and access to protection systems, even if the child remains in the country of origin; and disasters that impact several countries simultaneously. Specific legislation, policies, programmes and partnerships may be required to protect children affected by cross-border child protection issues (for example cybercrime and extraterritorial prosecution of those who sexually abuse children through travel and tourism and traffickers of families and children), whether these children are in traditional caregiving situations or where the State is the de facto caregiver, as in the case of unaccompanied children.
b) Financial resources: improved coordination, monitoring and evaluation of donor aid; further development of financial and human capital analyses 27 See general comment No. 5 (paras. 61, 62 and 64) on: the need for the mainstreaming of children’s rights into international cooperation and technical assistance; the need for such cooperation and assistance to be guided by, and to fully promote implementation of, the Convention; the allocation of a substantive part of international aid and assistance specifically to children; and the need for Poverty Reduction Strategy Papers and sector-wide approaches to development to include a strong focus on children’s rights.
BI A CK N D E X
181
number 14
U PV EDR A TED SION
INTRODUCTION A. THE BEST INTERESTS OF THE CHILD: A RIGHT, A PRINCIPLE AND A RULE OF PROCEDURE 1. Article 3, paragraph 1, of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 3, paragraph 1, as one of the four general principles of the Convention for interpreting and implementing all the rights of the child,1 and applies it is a dynamic concept that requires an assessment appropriate to the specific context. 2. The concept of the “child’s best interests” is not new. Indeed, it pre-dates the Convention and was already enshrined in the 1959 Declaration of the Rights of the Child (para. 2), the Convention on the Elimination of All Forms of Discrimination against Women (arts. 5 (b) and 16, para. 1 (d)), as well as in regional instruments and many national and international laws. 3. The Convention also explicitly refers to the child’s best interests in other articles: article 9: separation from parents; article 10: family reunification; article 18: parental responsibilities; article 20: deprivation of family environment and alternative care; article 21: adoption; article 37(c): separation from adults in detention; article 40, paragraph 2 (b) (iii): procedural guarantees, including presence of parents at court hearings for penal matters involving children in conflict with the law. Reference is also made to the child’s best interests in the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (preamble and art. 8) and in the Optional Protocol to the Convention on a communications procedure (preamble and arts. 2 and 3). 4. The concept of the child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child.2 The Committee has already pointed out3 that “an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.” It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the “child’s best interests” and no right could be compromised by a negative interpretation of the child’s best interests. 5. The full application of the concept of the child’s best interests requires the development of a rights-based approach, engaging all actors, to secure the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity. 6. The Committee underlines that the child’s best interests is a threefold concept: 184
a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court. b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation. c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases. 7. In the present general comment, the expression “the child’s best interests” or “the best interests of the child” covers the three dimensions developed above.
B. STRUCTURE 8. The scope of the present general comment is limited to article 3, paragraph 1, of the Convention and does not cover article 3, paragraph 2, which pertains to the well-being of the child, nor article 3, paragraph 3, which concerns the obligation of States parties to ensure that institutions, services and facilities for children comply with the established standards, and that mechanisms are in place to ensure that the standards are respected. 9. The Committee states the objectives (chapter II) of the present general comment and presents the nature and scope of the obligation of States parties (chapter III). It also provides a legal analysis of article 3, paragraph 1 (chapter IV), showing the links to other general principles of the Convention. Chapter V is dedicated to the implementation, in practice, of the principle of best interests of the child, while chapter VI provides guidelines on disseminating the general comment.
OBJECTIVES 10. The present general comment seeks to ensure the application of and respect for the best interests of the child by the States parties to the Convention. It defines the requirements for due consideration, especially in judicial
BACK
KEYWORDS INDEX
U PV EDR A TED SION and administrative decisions as well as in other actions concerning the child as an individual, and at all stages of the adoption of laws, policies, strategies, programmes, plans, budgets, legislative and budgetary initiatives and guidelines – that is, all implementation measures – concerning children in general or as a specific group. The Committee expects that this general comment will guide decisions by all those concerned with children, including parents and caregivers.
describing how the best interests have been examined and assessed, and what weight has been ascribed to them in the decision.
11. The best interests of the child is a dynamic concept that encompasses various issues which are continuously evolving. The present general comment provides a framework for assessing and determining the child’s best interests; it does not attempt to prescribe what is best for the child in any given situation at any point in time.
15. To ensure compliance, States parties should undertake a number of implementation measures in accordance with articles 4, 42 and 44, paragraph 6, of the Convention, and ensure that the best interests of the child are a primary consideration in all actions, including:
12. The main objective of this general comment is to strengthen the understanding and application of the right of children to have their best interests assessed and taken as a primary consideration or, in some cases, the paramount consideration (see paragraph 38 below). Its overall objective is to promote a real change in attitudes leading to the full respect of children as rights holders. More specifically, this has implications for: a) The elaboration of all implementation measures taken by governments; b) Individual decisions made by judicial or administrative authorities or public entities through their agents that concern one or more identified children; c) Decisions made by civil society entities and the private sector, including profit and non-profit organizations, which provide services concerning or impacting on children; d) Guidelines for actions undertaken by persons working with and for children, including parents and caregivers.
c) The obligation to ensure that the interests of the child have been assessed and taken as a primary consideration in decisions and actions taken by the private sector, including those providing services, or any other private entity or institution making decisions that concern or impact on a child.
a) Reviewing and, where necessary, amending domestic legislation and other sources of law so as to incorporate article 3, paragraph 1, and ensure that the requirement to consider the child’s best interests is reflected and implemented in all national laws and regulations, provincial or territorial legislation, rules governing the operation of private or public institutions providing services or impacting on children, and judicial and administrative proceedings at any level, both as a substantive right and as a rule of procedure; b) Upholding the child’s best interests in the coordination and implementation of policies at the national, regional and local levels; c) Establishing mechanisms and procedures for complaints, remedy or redress in order to fully realize the right of the child to have his or her best interests appropriately integrated and consistently applied in all implementation measures, administrative and judicial proceedings relevant to and with an impact on him or her; d) Upholding the child’s best interests in the allocation of national resources for programmes and measures aimed at implementing children’s rights, and in activities receiving international assistance or development aid;
NATURE AND SCOPE
OF THE OBLIGATIONS OF STATES PARTIES
e) When establishing, monitoring and evaluating data collection, ensure that the child’s best interests are explicitly spelled out and, where required, support research on children’s rights issues;
13. Each State party must respect and implement the right of the child to have his or her best interests assessed and taken as a primary consideration, and is under the obligation to take all necessary, deliberate and concrete measures for the full implementation of this right.
f) Providing information and training on article 3, paragraph 1, and its application in practice to all those making decisions that directly or indirectly impact on children, including professionals and other people working for and with children;
14. Article 3, paragraph 1, establishes a framework with three different types of obligations for States parties: a) The obligation to ensure that the child’s best interests are appropriately integrated and consistently applied in every action taken by a public institution, especially in all implementation measures, administrative and judicial proceedings which directly or indirectly impact on children; b) The obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child’s best interests have been a primary consideration. This includes
g) Providing appropriate information to children in a language they can understand, and to their families and caregivers, so that they understand the scope of the right protected under article 3, paragraph 1, as well as creating the necessary conditions for children to express their point of view and ensuring that their opinions are given due weight; h) Combating all negative attitudes and perceptions which impede the full realization of the right of the child to have his or her best interests assessed and taken as a primary consideration, through communication programmes involving mass media and social networks as well as children, in order to have children recognized as
BI A CK N D E X
185
U PV EDR A TED SION directly concerning a child, children as a group or children in general, and secondly, to other measures that have an effect on an individual child, children as a group or children in general, even if they are not the direct targets of the measure. As stated in the Committee’s general comment No. 7 (2005), such actions include those aimed at children (e.g. related to health, care or education), as well as actions which include children and other population groups (e.g. related to the environment, housing or transport) (para. 13 (b)). Therefore, “concerning” must be understood in a very broad sense. rights holders. 16. In giving full effect to the child’s best interests, the following parameters should be borne in mind: a) The universal, indivisible, interdependent and interrelated nature of children’s rights; b) Recognition of children as right holders; c) The global nature and reach of the Convention;
20. Indeed, all actions taken by a State affect children in one way or another. This does not mean that every action taken by the State needs to incorporate a full and formal process of assessing and determining the best interests o the child. However, where a decision will have a major impact on a child or children, a greater level of protection and detailed procedures to consider their best interests is appropriate. Thus, in relation to measures that are not directly aimed at the child or children, the term “concerning” would need to be clarified in the light of the circumstances of each case in order to be able to appreciate the impact of the action on the child or children.
d) The obligation of States parties to respect, protect and fulfill all the rights in the Convention; e) Short-, medium- and long-term effects of actions related to the development of the child over time.
c) “children” 21. The term “children” refers to all persons under the age of 18 within the jurisdiction of a State party, without discrimination of any kind, in line with articles 1 and 2 of the Convention. 22. Article 3, paragraph 1, applies to children as individuals and places an obligation on States parties to assess and take the child’s best interests as a primary consideration in individual decisions.
LEGAL ANALYSIS AND LINKS WITH THE GENERAL PRINCIPLES OF THE CONVENTION
A. LEGAL ANALYSIS OF ARTICLE 3, PARAGRAPH 1 1. “IN ALL ACTIONS CONCERNING CHILDREN” a) “In all actions” 17. Article 3, paragraph 1 seeks to ensure that the right is guaranteed in all decisions and actions concerning children. This means that every action relating to a child or children has to take into account their best interests as a primary consideration. The word “action” does not only include decisions, but also all acts, conduct, proposals, services, procedures and other measures. 18. Inaction or failure to take action and omissions are also “actions”, for example, when social welfare authorities fail to take action to protect children from neglect or abuse.
23. However, the term “children” implies that the right to have their best interests duly considered applies to children not only as individuals, but also in general or as a group. Accordingly, States have the obligation to assess and take as a primary consideration the best interests of children as a group or in general in all actions concerning them. This is particularly evident for all implementation measures. The Committee4 underlines that the child’s best interests is conceived both as a collective and individual right, and that the application of this right to indigenous children as a group requires consideration of how the right relates to collective cultural rights. 24. That is not to say that in a decision concerning an individual child, his or her interests must be understood as being the same as those of children in general. Rather, article 3, paragraph 1, implies that the best interests of a child must be assessed individually. Procedures for establishing the best interests of children individually and as a group can be found in chapter V below.
2. “BY PUBLIC OR PRIVATE SOCIAL WELFARE INSTITUTIONS, COURTS OF b) “concerning” LAW, ADMINISTRATIVE AUTHORITIES OR 19. The legal duty applies to all decisions and actions LEGISLATIVE BODIES” that directly or indirectly affect children. Thus, the term “concerning” refers first of all, to measures and decisions
186
4 General comment No.11 (2009) on indigenous children and their rights under the Convention, para. 30.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 25. The obligation of the States to duly consider the child’s best interests is a comprehensive obligation encompassing all public and private social welfare institutions, courts of law, administrative authorities and legislative bodies involving or concerning children. Although parents are not explicitly mentioned in article 3, paragraph 1, the best interests of the child “will be their basic concern” (art. 18, para. 1). a) “public or private social welfare institutions”
d) “legislative bodies”
26. These terms should not be narrowly construed or limited to social institutions stricto sensu, but should be understood to mean all institutions whose work and decisions impact on children and the realization of their rights. Such institutions include not only those related to economic, social and cultural rights (e.g. care, health, environment, education, business, leisure and play, etc.), but also institutions dealing with civil rights and freedoms (e.g. birth registration, protection against violence in all settings, etc.). Private social welfare institutions include private sector organizations – either for-profit or nonprofit – which play a role in the provision of services that are critical to children’s enjoyment of their rights, and which act on behalf of or alongside Government services as an alternative. b) “courts of law”
28. In criminal cases, the best interests principle applies to children in conflict (i.e. alleged, accused or recognized as having infringed) or in contact (as victims or witnesses) with the law, as well as children affected by the situation of their parents in conflict with the law. The Committee5 underlines that protecting the child’s best interests means that the traditional objectives of criminal justice, such as repression or retribution, must give way to rehabilitation and restorative justice objectives, when dealing with child offenders. 29. In civil cases, the child may be defending his or her interests directly or through a representative, in the case of paternity, child abuse or neglect, family reunification, accommodation, etc. The child may be affected by the trial, for example in procedures concerning adoption or divorce, decisions regarding custody, residence, contact or other issues which have an important impact on the life and development of the child, as well as child abuse or neglect proceedings. The courts must provide for the best interests of the child to be considered in all such situations and decisions, whether of a procedural or substantive nature, and must demonstrate that they have effectively done so.
5 General comment No. 10 (2007) on children’s rights in juvenile justice, para. 10.
31. The extension of States parties’ obligation to their “legislative bodies” shows clearly that article 3, paragraph 1, relates to children in general, not only to children as individuals. The adoption of any law or regulation as well as collective agreements – such as bilateral or multilateral trade or peace treaties which affect children – should be governed by the best interests of the child. The right of the child to have his or her best interests assessed and taken as a primary consideration should be explicitly included in all relevant legislation, not only in laws that specifically concern children. This obligation extends also to the approval of budgets, the preparation and development of which require the adoption of a best-interests-of-the-child perspective for it to be child-rights sensitive.
3. “THE BEST INTERESTS OF THE CHILD”
27. The Committee underlines that “courts” refer to all judicial proceedings, in all instances – whether staffed by professional judges or lay persons – and all relevant procedures concerning children, without restriction. This includes conciliation, mediation and arbitration processes.
c) “administrative authorities”
30. The Committee emphasizes that the scope of decisions made by administrative authorities at all levels is very broad, covering decisions concerning education, care, health, the environment, living conditions, protection, asylum, immigration, access to nationality, among others. Individual decisions taken by administrative authorities in these areas must be assessed and guided by the best interests of the child, as for all implementation measures.
32. The concept of the child’s best interests is complex and its content must be determined on a case-by-case basis. It is through the interpretation and implementation of article 3, paragraph 1, in line with the other provisions of the Convention, that the legislator, judge, administrative, social or educational authority will be able to clarify the concept and make concrete use thereof. Accordingly, the concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child’s best interests must be assessed and determined in light of the specific circumstances of the particular child. For collective decisions – such as by the legislator –, the best interests of children in general must be assessed and determined in light of the circumstances of the particular group and/or children in general. In both cases, assessment and determination should be carried out with full respect for the rights contained in the Convention and its Optional Protocols. 33. The child’s best interests shall be applied to all matters concerning the child or children, and taken into account to resolve any possible conflicts among the rights enshrined in the Convention or other human rights treaties. Attention must be placed on identifying possible solutions which are in the child’s best interests. This implies that States are under the obligation to clarify the best interests of all children, including those in vulnerable situations, when adopting implementation measures. 34. The flexibility of the concept of the child’s best interests
BI A CK N D E X
187
U PV EDR A TED SION allows it to be responsive to the situation of individual children and to evolve knowledge about child development. However, it may also leave room for manipulation; the concept of the child’s best interests has been abused by Governments and other State authorities to justify racist policies, for example; by parents to defend their own interests in custody disputes; by professionals who could not be bothered, and who dismiss the assessment of the child’s best interests as irrelevant or unimportant. 35. With regard to implementation measures, ensuring that the best interests of the child are a primary consideration in legislation and policy development and delivery at all levels of Government demands a continuous process of child rights impact assessment (CRIA) to predict the impact of any proposed law, policy or budgetary allocation on children and the enjoyment of their rights, and child rights impact evaluation to evaluate the actual impact of implementation. 6
40. Viewing the best interests of the child as “primary” requires a consciousness about the place that children’s interests must occupy in all actions and a willingness to give priority to those interests in all circumstances, but especially when an action has an undeniable impact on the children concerned.
B. THE BEST INTERESTS OF THE CHILD AND LINKS WITH OTHER GENERAL PRINCIPLES OF THE CONVENTION 1. THE CHILD’S BEST INTERESTS AND THE RIGHT TO NON-DISCRIMINATION (ART. 2)
4. “SHALL BE A PRIMARY CONSIDERATION”
36. The best interests of a child shall be a primary consideration in the adoption of all measures of implementation. The words “shall be” place a strong legal obligation on States and mean that States may not exercise discretion as to whether children’s best interests are to be assessed and ascribed the proper weight as a primary consideration in any action undertaken. 37. The expression “primary consideration” means that the child’s best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child: dependency, maturity, legal status and, often, voicelessness. Children have less possibility than adults to make a strong case for their own interests and those involved in decisions affecting them must be explicitly aware of their interests. If the interests of children are not highlighted, they tend to be overlooked. 38. In respect of adoption (art. 21), the right of best interests is further strengthened; it is not simply to be “a primary consideration” but “the paramount consideration”. Indeed, the best interests of the child are to be the determining factor when taking a decision on adoption, but also on other issues. 39. However, since article 3, paragraph 1, covers a wide range of situations, the Committee recognizes the need for a degree of flexibility in its application. The best interests of the child – once assessed and determined – might conflict with other interests or rights (e.g. of other children, the public, parents, etc.). Potential conflicts between the best interests of a child, considered individually, and those of a group of children or children in general have to be resolved on a case-by-case basis, carefully balancing the interests of all parties and finding a suitable compromise. The same must be done if the rights of other persons are in conflict with the child’s best interests. If harmonization is not possible, authorities and decision-makers will have 6 General comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child, para. 45. 188
to analyse and weigh the rights of all those concerned, bearing in mind that the right of the child to have his or her best interests taken as a primary consideration means that the child’s interests have high priority and not just one of several considerations. Therefore, a larger weight must be attached to what serves the child best.
41. The right to non-discrimination is not a passive obligation, prohibiting all forms of discrimination in the enjoyment of rights under the Convention, but also requires appropriate proactive measures taken by the State to ensure effective equal opportunities for all children to enjoy the rights under the Convention. This may require positive measures aimed at redressing a situation of real inequality.
2. THE CHILD’S BEST INTERESTS AND THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT (ART. 6) 42. States must create an environment that respects human dignity and ensures the holistic development of every child. In the assessment and determination of the child’s best interests, the State must ensure full respect for his or her inherent right to life, survival and development.
3. THE CHILD’S BEST INTERESTS AND THE RIGHT TO BE HEARD (ART. 12)
43. Assessment of a child’s best interests must include respect for the child’s right to express his or her views freely and due weight given to said views in all matters affecting the child. This is clearly set out in the Committee’s general comment No. 12 which also highlights the inextricable links between articles 3, paragraph 1, and 12. The two articles have complementary roles: the first aims to realize the child’s best interests, and the second provides the methodology for hearing the views of the child or children and their inclusion in all matters affecting the child, including the assessment of his or her best interests. Article 3, paragraph 1, cannot be correctly applied if the requirements of article 12 are not met. Similarly, article 3, paragraph 1, reinforces the functionality of article 12, by facilitating the essential role of children in all decisions affecting their lives7. 7 General comment No. 12, paras. 70-74.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 44. The evolving capacities of the child (art. 5) must be taken into consideration when the child’s best interests and right to be heard are at stake. The Committee has already established that the more the child knows, has experienced and understands, the more the parent, legal guardian or other persons legally responsible for him or her have to transform direction and guidance into reminders and advice, and later to an exchange on an equal footing.8 Similarly, as the child matures, his or her views shall have increasing weight in the assessment of his or her best interests. Babies and very young children have the same rights as all children to have their best interests assessed, even if they cannot express their views or represent themselves in the same way as older children. States must ensure appropriate arrangements, including representation, when appropriate, for the assessment of their best interests; the same applies for children who are not able or willing to express a view. 45. The Committee recalls that article 12, paragraph 2, of the Convention provides for the right of the child to be heard, either directly or through a representative, in any judicial or administrative proceeding affecting him or her (see further chapter V.B below).
IMPLEMENTATION: ASSESSING AND DETERMINING THE CHILD’S BEST INTERESTS
46. As stated earlier, the “best interests of the child” is a right, a principle and a rule of procedure based on an assessment of all elements of a child’s or children’s interests in a specific situation. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. 47. Assessment and determination of the child’s best interests are two steps to be followed when required to make a decision. The “best-interests assessment” consists in evaluating and balancing all the elements necessary to make a decision in a specific situation for a specific individual child or group of children. It is carried out by the decision-maker and his or her staff – if possible a multidisciplinary team –, and requires the participation of the child. The “best-interests determination” describes the formal process with strict procedural safeguards designed to determine the child’s best interests on the basis of the best-interests assessment.
A. BEST INTERESTS ASSESSMENT AND DETERMINATION 48. Assessing the child’s best interests is a unique activity 8 Ibid., para. 84.
that should be undertaken in each individual case, in the light of the specific circumstances of each child or group of children or children in general. These circumstances relate to the individual characteristics of the child or children concerned, such as, inter alia, age, sex, level of maturity, experience, belonging to a minority group, having a physical, sensory or intellectual disability, as well as the social and cultural context in which the child or children find themselves, such as the presence or absence of parents, whether the child lives with them, quality of the relationships between the child and his or her family or caregivers, the environment in relation to safety, the existence of quality alternative means available to the family, extended family or caregivers, etc. 49. Determining what is in the best interests of the child should start with an assessment of the specific circumstances that make the child unique. This implies that some elements will be used and others will not, and also influences how they will be weighted against each other. For children in general, assessing best interests involves the same elements. 50. The Committee considers it useful to draw up a nonexhaustive and non-hierarchical list of elements that could be included in a best-interests assessment by any decisionmaker having to determine a child’s best interests. The nonexhaustive nature of the elements in the list implies that it is possible to go beyond those and consider other factors relevant in the specific circumstances of the individual child or group of children. All the elements of the list must be taken into consideration and balanced in light of each situation. The list should provide concrete guidance, yet flexibility. 51. Drawing up such a list of elements would provide guidance for the State or decision-maker in regulating specific areas affecting children, such as family, adoption and juvenile justice laws, and if necessary, other elements deemed appropriate in accordance with its legal tradition may be added. The Committee would like to point out that, when adding elements to the list, the ultimate purpose of the child’s best interests should be to ensure the full and effective enjoyment of the rights recognized in the Convention and the holistic development of the child. Consequently, elements that are contrary to the rights enshrined in the Convention or that would have an effect contrary to the rights under the Convention cannot be considered as valid in assessing what is best for a child or children.
1. ELEMENTS TO BE TAKEN INTO ACCOUNT WHEN ASSESSING THE CHILD’S BEST INTERESTS 52. Based on these preliminary considerations, the Committee considers that the elements to be taken into account when assessing and determining the child’s best interests, as relevant to the situation in question, are as follows: a) The child’s views 53. Article 12 of the Convention provides for the right of children to express their views in every decision that
BI A CK N D E X
189
U PV EDR A TED SION affects them. Any decision that does not take into account the child’s views or does not give their views due weight according to their age and maturity, does not respect the possibility for the child or children to influence the determination of their best interests. 54. The fact that the child is very young or in a vulnerable situation (e.g. has a disability, belongs to a minority group, is a migrant, etc.) does not deprive him or her of the right to express his or her views, nor reduces the weight given to the child’s views in determining his or her best interests. The adoption of specific measures to guarantee the exercise of equal rights for children in such situations must be subject to an individual assessment which assures a role to the children themselves in the decision-making process, and the provision of reasonable accommodation9 and support, where necessary, to ensure their full participation in the assessment of their best interests. b) The child’s identity 55. Children are not a homogeneous group and therefore diversity must be taken into account when assessing their best interests. The identity of the child includes characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity, personality. Although children and young people share basic universal needs, the expression of those needs depends on a wide range of personal, physical, social and cultural aspects, including their evolving capacities. The right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must be respected and taken into consideration in the assessment of the child’s best interests. 56. Regarding religious and cultural identity, for example, when considering a foster home or placement for a child, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background (art. 20, para. 3), and the decision-maker must take into consideration this specific context when assessing and determining the child’s best interests. The same applies in cases of adoption, separation from or divorce of parents. Due consideration of the child’s best interests implies that children have access to the culture (and language, if possible) of their country and family of origin, and the opportunity to access information about their biological family, in accordance with the legal and professional regulations of the given country (see art. 9, para. 4). 57. Although preservation of religious and cultural values and traditions as part of the identity of the child must be taken into consideration, practices that are inconsistent or incompatible with the rights established in the Convention are not in the child’s best interests. Cultural identity cannot excuse or justify the perpetuation by decision-makers and authorities of traditions and cultural values that deny the child or children the rights guaranteed by the Convention. c) Preservation of the family environment and maintaining relations
190
9 See Convention on the Rights of Persons with Disabilities, art. 2: “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure […] the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
58. The Committee recalls that it is indispensable to carry out the assessment and determination of the child’s best interests in the context of potential separation of a child from his or her parents (arts. 9, 18 and 20). It also underscores that the elements mentioned above are concrete rights and not only elements in the determination of the best interests of the child. 59. The family is the fundamental unit of society and the natural environment for the growth and well-being of its members, particularly children (preamble of the Convention). The right of the child to family life is protected under the Convention (art. 16). The term “family” must be interpreted in a broad sense to include biological, adoptive or foster parents or, where applicable, the members of the extended family or community as provided for by local custom (art. 5). 60. Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when […] such separation is necessary for the best interests of the child”. Furthermore, the child who is separated from one or both parents is entitled “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests” (art. 9, para. 3). This also extends to any person holding custody rights, legal or customary primary caregivers, foster parents and persons with whom the child has a strong personal relationship. 61. Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child. Before resorting to separation, the State should provide support to the parents in assuming their parental responsibilities, and restore or enhance the family’s capacity to take care of the child, unless separation is necessary to protect the child. Economic reasons cannot be a justification for separating a child from his or her parents. 62. The Guidelines for the Alternative Care of Children10 aims to ensure that children are not placed in alternative care unnecessarily; and that where alternative care is provided, it is delivered under appropriate conditions responding to the rights and best interests of the child. In particular, “financial and material poverty, or conditions directly and uniquely imputable to such poverty, should never be the only justification for the removal of a child from parental care [...] but should be seen as a signal for the need to provide appropriate support to the family” (para. 15). 63. Likewise, a child may not be separated from his or her parents on the grounds of a disability of either the child or his or her parents.11 Separation may be considered only in cases where the necessary assistance to the family to 10 General Assembly resolution 64/142, annex. 11 Convention on the Rights of Persons with Disabilities, art. 23, para. 4.
BACK
KEYWORDS INDEX
U PV EDR A TED SION preserve the family unit is not effective enough to avoid a risk of neglect or abandonment of the child or a risk to the child’s safety. 64. In case of separation, the State must guarantee that the situation of the child and his or her family has been assessed, where possible, by a multidisciplinary team of well-trained professionals with appropriate judicial involvement, in conformity with article 9 of the Convention, ensuring that no other option can fulfil the child’s best interests. 65. When separation becomes necessary, the decisionmakers shall ensure that the child maintains the linkages and relations with his or her parents and family (siblings, relatives and persons with whom the child has had strong personal relationships) unless this is contrary to the child’s best interests. The quality of the relationships and the need to retain them must be taken into consideration in decisions on the frequency and length of visits and other contact when a child is placed outside the family. 66. When the child’s relations with his or her parents are interrupted by migration (of the parents without the child, or of the child without his or her parents), preservation of the family unit should be taken into account when assessing the best interests of the child in decisions on family reunification. 67. The Committee is of the view that shared parental responsibilities are generally in the child’s best interests. However, in decisions regarding parental responsibilities, the only criterion shall be what is in the best interests of the particular child. It is contrary to those interests if the law automatically gives parental responsibilities to either or both parents. In assessing the child’s best interests, the judge must take into consideration the right of the child to preserve his or her relationship with both parents, together with the other elements relevant to the case. 68. The Committee encourages the ratification and implementation of the conventions of the Hague Conference on Private International Law,12 which facilitate the application of the child’s best interests and provide guarantees for its implementation in the event that the parents live in different countries. 69. In cases where the parents or other primary caregivers commit an offence, alternatives to detention should be made available and applied on a case-by-case basis, with full consideration of the likely impacts of different sentences on the best interests of the affected child or children.13 70. Preservation of the family environment encompasses the preservation of the ties of the child in a wider sense. These ties apply to the extended family, such as grandparents, uncles/aunts as well friends, school and the 12 These include No. 28 on the Civil Aspects of International Child Abduction, 1980; No. 33 on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993; No. 23 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, 1973; No. 24 on the Law Applicable to Maintenance Obligations, 1973. 13 See recommendations of the Day of general discussion on children of incarcerated parents (2011).
wider environment and are particularly relevant in cases where parents are separated and live in different places. d) Care, protection and safety of the child 71. When assessing and determining the best interests of a child or children in general, the obligation of the State to ensure the child such protection and care as is necessary for his or her well-being (art. 3, para. 2) should be taken into consideration. The terms “protection and care” must also be read in a broad sense, since their objective is not stated in limited or negative terms (such as “to protect the child from harm”), but rather in relation to the comprehensive ideal of ensuring the child’s “well-being” and development. Children’s well-being, in a broad sense includes their basic material, physical, educational, and emotional needs, as well as needs for affection and safety. 72. Emotional care is a basic need of children; if parents or other primary caregivers do not fulfil the child’s emotional needs, action must be taken so that the child develops a secure attachment. Children need to form an attachment to a caregiver at a very early age, and such attachment, if adequate, must be sustained over time in order to provide the child with a stable environment. 73. Assessment of the child’s best interests must also include consideration of the child’s safety, that is, the right of the child to protection against all forms of physical or mental violence, injury or abuse (art. 19), sexual harassment, peer pressure, bullying, degrading treatment, etc.,14 as well as protection against sexual, economic and other exploitation, drugs, labour, armed conflict, etc.(arts. 32-39). 74. Applying a best-interests approach to decision-making means assessing the safety and integrity of the child at the current time; however, the precautionary principle also requires assessing the possibility of future risk and harm and other consequences of the decision for the child’s safety. e) Situation of vulnerability 75. An important element to consider is the child’s situation of vulnerability, such as disability, belonging to a minority group, being a refugee or asylum seeker, victim of abuse, living in a street situation, etc. The purpose of determining the best interests of a child or children in a vulnerable situation should not only be in relation to the full enjoyment of all the rights provided for in the Convention, but also with regard to other human rights norms related to these specific situations, such as those covered in the Convention on the Rights of Persons with Disabilities, the Convention relating to the Status of Refugees, among others. 76. The best interests of a child in a specific situation of vulnerability will not be the same as those of all the children in the same vulnerable situation. Authorities and decisionmakers need to take into account the different kinds and degrees of vulnerability of each child, as each child is unique and each situation must be assessed according 14 General comment No. 13 (2011) on the right of the child to freedom from all forms of violence.
BI A CK N D E X
191
U PV EDR A TED SION to the child’s uniqueness. An individualized assessment of each child’s history from birth should be carried out, with regular reviews by a multidisciplinary team and recommended reasonable accommodation throughout the child’s development process. f) The child’s right to health 77. The child’s right to health (art. 24) and his or her health condition are central in assessing the child’s best interest. However, if there is more than one possible treatment for a health condition or if the outcome of a treatment is uncertain, the advantages of all possible treatments must be weighed against all possible risks and side effects, and the views of the child must also be given due weight based on his or her age and maturity. In this respect, children should be provided with adequate and appropriate information in order to understand the situation and all the relevant aspects in relation to their interests, and be allowed, when possible, to give their consent in an informed manner.15 78. For example, as regards adolescent health, the Committee16 has stated that States parties have the obligation to ensure that all adolescents, both in and out of school, have access to adequate information that is essential for their health and development in order to make appropriate health behaviour choices. This should include information on use and abuse of tobacco, alcohol and other substances, diet, appropriate sexual and reproductive information, dangers of early pregnancy, prevention of HIV/AIDS and of sexually transmitted diseases. Adolescents with a psycho-social disorder have the right to be treated and cared for in the community in which he or she lives, to the extent possible. Where hospitalization or placement in a residential institution is necessary, the best interests of the child must be assessed prior to taking a decision and with respect for the child’s views; the same considerations are valid for younger children. The health of the child and possibilities for treatment may also be part of a best-interests assessment and determination with regard to other types of significant decisions (e.g. granting a residence permit on humanitarian grounds). g) The child’s right to education 79. It is in the best interests of the child to have access to quality education, including early childhood education, non-formal or informal education and related activities, free of charge. All decisions on measures and actions concerning a specific child or a group of children must respect the best interests of the child or children, with regard to education. In order to promote education, or better quality education, for more children, States parties need to have well-trained teachers and other professionals working in different education-related settings, as well as a child-friendly environment and appropriate teaching and learning methods, taking into consideration that education is not only an investment in the future, but also an opportunity for joyful activities, respect, participation and fulfilment of ambitions. Responding to this requirement and enhancing children’s responsibilities to overcome the limitations of their vulnerability of any kind, will be in their 15 General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), para. 31. 16 General comment No. 4 (2003) on adolescent health and development in the context of the Convention on the Rights of the Child. 192
best interests.
2. BALANCING THE ELEMENTS IN THE BEST-INTERESTS ASSESSMENT 80. It should be emphasized that the basic best-interests assessment is a general assessment of all relevant elements of the child’s best interests, the weight of each element depending on the others. Not all the elements will be relevant to every case, and different elements can be used in different ways in different cases. The content of each element will necessarily vary from child to child and from case to case, depending on the type of decision and the concrete circumstances, as will the importance of each element in the overall assessment. 81. The elements in the best-interests assessment may be in conflict when considering a specific case and its circumstances. For example, preservation of the family environment may conflict with the need to protect the child from the risk of violence or abuse by parents. In such situations, the elements will have to be weighted against each other in order to find the solution that is in the best interests of the child or children. 82. In weighing the various elements, one needs to bear in mind that the purpose of assessing and determining the best interests of the child is to ensure the full and effective enjoyment of the rights recognized in the Convention and its Optional Protocols, and the holistic development of the child. 83. There might be situations where “protection” factors affecting a child (e.g. which may imply limitation or restriction of rights) need to be assessed in relation to measures of “empowerment” (which implies full exercise of rights without restriction). In such situations, the age and maturity of the child should guide the balancing of the elements. The physical, emotional, cognitive and social development of the child should be taken into account to assess the level of maturity of the child. 84. In the best-interests assessment, one has to consider that the capacities of the child will evolve. Decisionmakers should therefore consider measures that can be revised or adjusted accordingly, instead of making definitive and irreversible decisions. To do this, they should not only assess the physical, emotional, educational and other needs at the specific moment of the decision, but should also consider the possible scenarios of the child’s development, and analyse them in the short and long term. In this context, decisions should assess continuity and stability of the child’s present and future situation.
B. PROCEDURAL SAFEGUARDS TO GUARANTEE THE IMPLEMENTATION
BACK
KEYWORDS INDEX
U PV EDR A TED SION b) Establishment of facts
OF THE CHILD’S BEST INTERESTS 85. To ensure the correct implementation of the child’s right to have his or her best interests taken as a primary consideration, some child-friendly procedural safeguards must be put in place and followed. As such, the concept of the child’s best interests is a rule of procedure (see para. 6 (b) above). 86. While public authorities and organizations making decisions that concern children must act in conformity with the obligation to assess and determine the child’s best interests, people who make decisions concerning children on a daily basis (e.g. parents, guardians, teachers, etc.) are not expected to follow strictly this two-step procedure, even though decisions made in everyday life must also respect and reflect the child’s best interests. 87. States must put in place formal processes, with strict procedural safeguards, designed to assess and determine the child’s best interests for decisions affecting the child, including mechanisms for evaluating the results. States must develop transparent and objective processes for all decisions made by legislators, judges or administrative authorities, especially in areas which directly affect the child or children. 88. The Committee invites States and all persons who are in a position to assess and determine the child’s best interests to pay special attention to the following safeguards and guarantees: views
a) Right of the child to express his or her own
89. A vital element of the process is communicating with children to facilitate meaningful child participation and identify their best interests. Such communication should include informing children about the process and possible sustainable solutions and services, as well as collecting information from children and seeking their views. 90. Where the child wishes to express his or her views and where this right is fulfilled through a representative, the latter’s obligation is to communicate accurately the views of the child. In situations where the child’s views are in conflict with those of his or her representative, a procedure should be established to allow the child to approach an authority to establish a separate representation for the child (e.g. a guardian ad litem), if necessary. 91. The procedure for assessing and determining the best interests of children as a group is, to some extent, different from that regarding an individual child. When the interests of a large number of children are at stake, Government institutions must find ways to hear the views of a representative sample of children and give due consideration to their opinions when planning measures or making legislative decisions which directly or indirectly concern the group, in order to ensure that all categories of children are covered. There are many examples of how to do this, including children’s hearings, children’s parliaments, children-led organizations, children’s unions or other representative bodies, discussions at school, social networking websites, etc.
92. Facts and information relevant to a particular case must be obtained by well-trained professionals in order to draw up all the elements necessary for the best-interests assessment. This could involve interviewing persons close to the child, other people who are in contact with the child on a daily basis, witnesses to certain incidents, among others. Information and data gathered must be verified and analysed prior to being used in the child’s or children’s best-interests assessment. c) Time perception 93. The passing of time is not perceived in the same way by children and adults. Delays in or prolonged decisionmaking have particularly adverse effects on children as they evolve. It is therefore advisable that procedures or processes regarding or impacting children be prioritized and completed in the shortest time possible. The timing of the decision should, as far as possible, correspond to the child’s perception of how it can benefit him or her, and the decisions taken should be reviewed at reasonable intervals as the child develops and his or her capacity to express his or her views evolves. All decisions on care, treatment, placement and other measures concerning the child must be reviewed periodically in terms of his or her perception of time, and his or her evolving capacities and development (art. 25). d) Qualified professionals 94. Children are a diverse group, with each having his or her own characteristics and needs that can only be adequately assessed by professionals who have expertise in matters related to child and adolescent development. This is why the formal assessment process should be carried out in a friendly and safe atmosphere by professionals trained in, inter alia, child psychology, child development and other relevant human and social development fields, who have experience working with children and who will consider the information received in an objective manner. As far as possible, a multidisciplinary team of professionals should be involved in assessing the child’s best interests. 95. The assessment of the consequences of alternative solutions must be based on general knowledge (i.e. in the areas of law, sociology, education, social work, psychology, health, etc.) of the likely consequences of each possible solution for the child, given his or her individual characteristics and past experience. e) Legal representation 96. The child will need appropriate legal representation when his or her best interests are to be formally assessed and determined by courts and equivalent bodies.. In particular, in cases where a child is referred to an administrative or judicial procedure involving the determination of his or her best interests, he or she should be provided with a legal representative, in addition to a guardian or representative of his or her views, when there is a potential conflict between the parties in the decision. f) Legal reasoning 97. In order to demonstrate that the right of the child to have his or her best interests assessed and taken as a
BI A CK N D E X
193
U PV EDR A TED SION primary consideration has been respected, any decision concerning the child or children must be motivated, justified and explained. The motivation should state explicitly all the factual circumstances regarding the child, what elements have been found relevant in the bestinterests assessment, the content of the elements in the individual case, and how they have been weighted to determine the child’s best interests. If the decision differs from the views of the child, the reason for that should be clearly stated. If, exceptionally, the solution chosen is not in the best interests of the child, the grounds for this must be set out in order to show that the child’s best interests were a primary consideration despite the result. It is not sufficient to state in general terms that other considerations override the best interests of the child; all considerations must be explicitly specified in relation to the case at hand, and the reason why they carry greater weight in the particular case must be explained. The reasoning must also demonstrate, in a credible way, why the best interests of the child were not strong enough to be outweigh the other considerations. Account must be taken of those circumstances in which the best interests of the child must be the paramount consideration (see paragraph 38 above). g) Mechanisms to review or revise decisions 98. States should establish mechanisms within their legal systems to appeal or revise decisions concerning children when a decision seems not to be in accordance with the appropriate procedure of assessing and determining the child’s or children’s best interests. There should always be the possibility to request a review or to appeal such a decision at the national level. Mechanisms should be made known to the child and be accessible by him or her directly or by his or her legal representative, if it is considered that the procedural safeguards had not been respected, the facts are wrong, the best-interests assessment had not been adequately carried out or that competing considerations had been given too much weight. The reviewing body must look into all these aspects. h) Child-rights impact assessment (CRIA) 99. As mentioned above, the adoption of all measures of implementation should also follow a procedure that ensures that the child’s best interests are a primary consideration. The child-rights impact assessment (CRIA) can predict the impact of any proposed policy, legislation, regulation, budget or other administrative decision which affect children and the enjoyment of their rights and should complement ongoing monitoring and evaluation of the impact of measures on children’s rights.17 CRIA needs to be built into Government processes at all levels and as early as possible in the development of policy and other general measures in order to ensure good governance for children’s rights. Different methodologies and practices may be developed when undertaking CRIA. At a minimum, they must use the Convention and its Optional Protocols as a framework, in particular ensuring that the assessments are underpinned by the general principles and have special regard for the differentiated impact of the measure(s) under consideration on children. The impact assessment itself 17 General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, paras. 78-81. 194
could be based on input from children, civil society and experts, as well as from relevant Government departments, academic research and experiences documented in the country or elsewhere. The analysis should result in recommendations for amendments, alternatives and improvements and be made publicly available.18
DISSEMINATION 100. The Committee recommends that States widely disseminate the present general comment to parliaments, governments and the judiciary, nationally and locally. It should also be made known to children – including those in situations of exclusion –, all professionals working for and with children (including judges, lawyers, teachers, guardians, social workers, staff of public or private welfare institutions, health staff, teachers, etc.) and civil society at large. To do this, the general comment should be translated into relevant languages, child-friendly/appropriate versions should be made available, conferences, seminars, workshops and other events should be held to share best practices on how best to implement it. It should also be incorporated into the formal pre- and in-service training of all concerned professionals and technical staff. 101. States should include information in their periodic reporting to the Committee on the challenges they face and the measures they have taken to apply and respect the child’s best interests in all judicial and administrative decisions and other actions concerning the child as an individual, as well as at all stages of the adoption of implementation measures concerning children in general or as a specific group.
18 States may draw guidance from the Report of the Special Rapporteur on the right to food on Guiding principles on human rights impact assessments of trade and investment agreements (A/HRC/19/59/Add.5).
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
195
number 15
U PV EDR A TED SION
IN T R O DUC T I ON 1. The present general comment is based on the importance of approaching children’s health from a child-rights perspective that all children have the right to opportunities to survive, grow and develop, within the context of physical, emotional and social well-being, to each child’s full potential. Throughout this general comment, “child” refers to an individual below the age of 18 years, in accordance with article 1 of the Convention on the Rights of the Child (hereinafter “the Convention’’). Despite the remarkable achievements in fulfilling children’s rights to health in recent years since the adoption of the Convention, significant challenges remain. The Committee on the Rights of the Child (hereinafter “the Committee”) recognizes that most mortality, morbidity and disabilities among children could be prevented if there were political commitment and sufficient allocation of resources directed towards the application of available knowledge and technologies for prevention, treatment and care. The present general comment was prepared with the aim of providing guidance and support to States parties and other duty bearers to support them in respecting, protecting and fulfilling children’s right to the enjoyment of the highest attainable standard of health (hereinafter “children’s right to health”). 2. The Committee interprets children’s right to health as defined in article 24 as an inclusive right, extending not only to timely and appropriate prevention, health promotion, curative, rehabilitative and palliative services, but also to a right to grow and develop to their full potential and live in conditions that enable them to attain the highest standard of health through the implementation of programmes that address the underlying determinants of health. A holistic approach to health places the realization of children’s right to health within the broader framework of international human rights obligations. 3. The Committee addresses this general comment to a range of stakeholders working in the fields of children’s rights and public health, including policymakers, programme implementers and activists, as well as parents and children themselves. It is explicitly generic in order to ensure its relevance to a wide range of children’s health problems, health systems and the varied contexts that exist in different countries and regions. It focuses primarily on article 24, paragraphs 1 and 2, and also addresses article 24, paragraph 4.1 Implementation of article 24 must take into account all human rights principles, especially the guiding principles of the Convention, and must be shaped by evidence-based public health standards and best practices. 4. In the Constitution of the World Health Organization, States have agreed to regard health as a state of complete 198
physical, mental and social well-being and not merely the absence of disease or infirmity.2 This positive understanding of health provides the public health foundation for the present general comment. Article 24 explicitly mentions primary health care, an approach to which was defined in the Declaration of Alma-Ata3 and reinforced by the World Health Assembly.4 This approach emphasizes the need to eliminate exclusion and reduce social disparities in health; organize health services around people’s needs and expectations; integrate health into related sectors; pursue collaborative models of policy dialogue; and increase stakeholder participation, including the demand for and appropriate use of services. 5. Children’s health is affected by a variety of factors, many of which have changed during the past 20 years and are likely to continue to evolve in the future. This includes the attention given to new health problems and changing health priorities, such as: HIV/AIDS, pandemic influenza, non-communicable diseases, importance of mental health care, care of the new born, and neonatal and adolescent mortality; increased understanding of the factors that contribute to death, disease and disability in children, including structural determinants, such as the global economic and financial situation, poverty, unemployment, migration and population displacements, war and civil unrest, discrimination and marginalization. There is also a growing understanding of the impact of climate change and rapid urbanization on children’s health; the development of new technologies, such as vaccines and pharmaceuticals; a stronger evidence base for effective biomedical, behavioural and structural interventions, as well as some cultural practices that relate to child-rearing and have proved to have a positive impact on children. 6. Advances in information and communication technologies have created new opportunities and challenges to achieve children’s right to health. Despite the additional resources and technologies that have now become available to the health sector, many countries still fail to provide universal access to basic children’s health promotion, prevention and treatment services. A wide range of different duty bearers need to be involved if children’s right to health is to be fully realized and the central role played by parents and other caregivers needs to be better recognized. Relevant stakeholders will need to be engaged, working at national, regional, district and community levels, including governmental and non-governmental partners, private sector and funding organizations. States have an obligation to ensure that all duty bearers have sufficient awareness, knowledge and capacity to fulfil their obligations and responsibilities, and that children’s capacity is sufficiently developed to enable them to claim their right to health.
PRIN CIPLES 2 Preamble to the Constitution of the World Health Organization (WHO) as adopted by the International Health Conference, New York, 22 July 1946. 3 Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, 6–12 September 1978. 4 World Health Assembly, Primary health care including health systems strengthening, document A62/8.
BACK
KEYWORDS INDEX
U PV EDR A TED SION AND PREMISES FOR REALIZING CHILDREN’S RIGHT TO HEALTH
A. THE INDIVISIBILITY AND INTERDEPENDENCE OF CHILDREN’S RIGHTS 7. The Convention recognizes the interdependence and equal importance of all rights (civil, political, economic, social and cultural) that enable all children to develop their mental and physical abilities, personalities and talents to the fullest extent possible. Not only is children’s right to health important in and of itself, but also the realization of the right to health is indispensable for the enjoyment of all the other rights in the Convention. Moreover, achieving children’s right to health is dependent on the realization of many other rights outlined in the Convention.
B. RIGHT TO NONDISCRIMINATION 8. In order to fully realize the right to health for all children, States parties have an obligation to ensure that children’s health is not undermined as a result of discrimination, which is a significant factor contributing to vulnerability. A number of grounds on which discrimination is proscribed are outlined in article 2 of the Convention, including the child’s, parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. These also include sexual orientation, gender identity and health status, for example HIV status and mental health.5 Attention should also be given to any other forms of discrimination that might undermine children’s health, and the implications of multiple forms of discrimination should also be addressed. 9. Gender-based discrimination is particularly pervasive, affecting a wide range of outcomes, from female infanticide/foeticide to discriminatory infant and young child feeding practices, gender stereotyping and access to services. Attention should be given to the differing needs of girls and boys, and the impact of gender-related social norms and values on the health and development of boys and girls. Attention also needs to be given to harmful gender-based practices and norms of behaviour that are ingrained in traditions and customs and undermine the right to health of girls and boys. 10. All policies and programmes affecting children’s health should be grounded in a broad approach to gender equality that ensures young women’s full political participation; social and economic empowerment; recognition of equal rights related to sexual and reproductive health; and equal access to information, education, justice and security, including the elimination of all forms of sexual and genderbased violence. 11. Children in disadvantaged situations and under-served areas should be a focus of efforts to fulfil children’s right to health. States should identify factors at national and subnational levels that create vulnerabilities for children or
that disadvantage certain groups of children. These factors should be addressed when developing laws, regulations, policies, programmes and services for children’s health, and work towards ensuring equity.
C. THE BEST INTERESTS OF THE CHILD 12. Article 3, paragraph 1, of the Convention places an obligation on public and private social welfare institutions, courts of law, administrative authorities and legislative bodies to ensure that the best interests of the child are assessed and taken as a primary consideration in all actions affecting children. This principle must be observed in all health-related decisions concerning individual children or children as a group. Individual children’s best interests should be based on their physical, emotional, social and educational needs, age, sex, relationship with parents and caregivers, and their family and social background, and after having heard their views according to article 12 of the Convention. 13. The Committee urges States to place children’s best interests at the centre of all decisions affecting their health and development, including the allocation of resources, and the development and implementation of policies and interventions that affect the underlying determinants of their health. For example, the best interests of the child should: a) Guide treatment options, superseding economic considerations where feasible; b) Aid the resolution of conflict of interest between parents and health workers; and c) Influence the development of policies to regulate actions that impede the physical and social environments in which children live, grow and develop. 14. The Committee underscores the importance of the best interests of the child as a basis for all decision-making with regard to providing, withholding or terminating treatment for all children. States should develop procedures and criteria to provide guidance to health workers for assessing the best interests of the child in the area of health, in addition to other formal, binding processes that are in place for determining the child’s best interests. The Committee in its general comment No. 36 has underlined that adequate measures to address HIV/ AIDS can be undertaken only if the rights of children and adolescents are fully respected. The child’s best interests should therefore guide the consideration of HIV/AIDS at all levels of prevention, treatment, care and support. 15. In its general comment No. 4, the Committee underlined 6 General comment No. 3 (2003) on HIV/AIDS and the rights of the child, Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 41 (A/59/41), annex IX.
BI A CK N D E X
199
U PV EDR A TED SION the best interests of the child to have access to appropriate information on health issues.7 Special attention must be given to certain categories of children, including children and adolescents with psychosocial disabilities. Where hospitalization or placement in an institution is being considered, this decision should be made in accordance with the principle of the best interests of the child, with the primary understanding that it is in the best interests of all children with disabilities to be cared for, as far as possible, in the community in a family setting and preferably within their own family with the necessary supports made available to the family and the child.
D. RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT AND THE DETERMINANTS OF CHILDREN’S HEALTH 16. Article 6 highlights the States parties’ obligation to ensure the survival, growth and development of the child, including the physical, mental, moral, spiritual and social dimensions of their development. The many risks and protective factors that underlie the life, survival, growth and development of the child need to be systematically identified in order to design and implement evidenceinformed interventions that address a wide range of determinants during the life course. 17. The Committee recognizes that a number of determinants need to be considered for the realization of children’s right to health, including individual factors such as age, sex, educational attainment, socioeconomic status and domicile; determinants at work in the immediate environment of families, peers, teachers and service providers, notably the violence that threatens the life and survival of children as part of their immediate environment; and structural determinants, including policies, administrative structures and systems, social and cultural values and norms.8 18. Among the key determinants of children’s health, nutrition and development are the realization of the mother’s right to health9 and the role of parents and other caregivers. A significant number of infant deaths occur during the neonatal period, related to the poor health of the mother prior to, and during, the pregnancy and the immediate post-partum period, and to suboptimal breastfeeding practices. The health and health-related behaviours of parents and other significant adults have a major impact on children’s health.
E. RIGHT OF THE CHILD TO BE HEARD
F. EVOLVING CAPACITIES AND THE LIFE COURSE OF THE CHILD 20. Childhood is a period of continuous growth from birth to infancy, through the preschool age to adolescence. Each phase is significant as important developmental changes occur in terms of physical, psychological, emotional and social development, expectations and norms. The stages of the child’s development are cumulative and each stage has an impact on subsequent phases, influencing the children’s health, potential, risks and opportunities. Understanding the life course is essential in order to appreciate how health problems in childhood affect public health in general. 21. The Committee recognizes that children’s evolving capacities have a bearing on their independent decisionmaking on their health issues. It also notes that there are often serious discrepancies regarding such autonomous decision-making, with children who are particularly vulnerable to discrimination often less able to exercise this autonomy. It is therefore essential that supportive policies are in place and that children, parents and health workers have adequate rights-based guidance on consent, assent and confidentiality. 22. To respond and understand children’s evolving capacities and the different health priorities along the life cycle, data and information that are collected and analysed should be disaggregated by age, sex, disability, socioeconomic status and sociocultural aspects and geographic location, in accordance with international standards. This makes it possible to plan, develop, implement and monitor appropriate policies and interventions that take into consideration the changing capacities and needs of children over time, and that help to provide relevant health services for all children. Normative content of article 24.
A. ARTICLE 24, PARAGRAPH 1 “STATES PARTIES RECOGNIZE THE RIGHT OF THE CHILD TO THE ENJOYMENT OF THE HIGHEST ATTAINABLE STANDARD OF HEALTH”
19. Article 12 highlights the importance of children’s participation, providing for children to express their views and to have such views seriously taken into account, according to age and maturity.10 This includes their views on all aspects of health provisions, including, for example, what services are needed, how and where they are best provided, barriers to accessing or using services, the quality of the services and the attitudes of health 200
professionals, how to strengthen children’s capacities to take increasing levels of responsibility for their own health and development, and how to involve them more effectively in the provision of services, as peer educators. States are encouraged to conduct regular participatory consultations, which are adapted to the age and maturity of the child, and research with children, and to do this separately with their parents, in order to learn about their health challenges, developmental needs and expectations as a contribution to the design of effective interventions and health programmes.
23. The notion of “the highest attainable standard of health” takes into account both the child’s biological, social, cultural and economic preconditions and the State’s available resources, supplemented by resources made available by other sources, including non-governmental organizations, the international community and the private sector.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 24. Children’s right to health contains a set of freedoms and entitlements. The freedoms, which are of increasing importance in accordance with growing capacity and maturity, include the right to control one’s health and body, including sexual and reproductive freedom to make responsible choices. The entitlements include access to a range of facilities, goods, services and conditions that provide equality of opportunity for every child to enjoy the highest attainable standard of health. “AND TO FACILITIES FOR THE TREATMENT OF ILLNESS AND REHABILITATION OF HEALTH” 25. Children are entitled to quality health services, including prevention, promotion, treatment, rehabilitation and palliative care services. At the primary level, these services must be available in sufficient quantity and quality, functional, within the physical and financial reach of all sections of the child population, and acceptable to all. The health-care system should not only provide healthcare support but also report the information to relevant authorities for cases of rights violations and injustice. Secondary and tertiary level care should also be made available, to the extent possible, with functional referral systems linking communities and families at all levels of the health system. 26. Comprehensive primary health-care programmes should be delivered alongside proven community-based efforts, including preventive care, treatment of specific diseases and nutritional interventions. Interventions at the community level should include the provision of information, services and commodities as well as prevention of illness and injury through, e.g., investment in safe public spaces, road safety and education on injury, accident and violence prevention. 27. States should ensure an appropriately trained workforce of sufficient size to support health services for all children. Adequate regulation, supervision, remuneration and conditions of service are also required, including
for community health workers. Capacity development activities should ensure that service providers work in a child-sensitive manner and do not deny children any services to which they are entitled by law. Accountability mechanisms should be incorporated to ensure that quality assurance standards are maintained. “STATES PARTIES SHALL STRIVE TO ENSURE THAT NO CHILD IS DEPRIVED OF HIS OR HER RIGHT OF ACCESS TO SUCH HEALTH CARE SERVICES” 28. Article 24, paragraph 1, imposes a strong duty of action by States parties to ensure that health and other relevant services are available and accessible to all children, with special attention to under-served areas and populations. It requires a comprehensive primary health-care system, an adequate legal framework and sustained attention to the underlying determinants of children’s health. 29. Barriers to children’s access to health services, including financial, institutional and cultural barriers, should be identified and eliminated. Universal free birth registration is a prerequisite and social protection interventions, including social security such as child grants or subsidies, cash transfers and paid parental leave, should be implemented and seen as complementary investments. 30. Health-seeking behaviour is shaped by the environment in which it takes place, including, inter alia, the availability of services, levels of health knowledge, life skills and values. States should seek to ensure an enabling environment to encourage appropriate health-seeking behaviour by parents and children. 31. In accordance with their evolving capacities, children should have access to confidential counselling and advice without parental or legal guardian consent, where this is assessed by the professionals working with the child to be in the child’s best interests. States should clarify the legislative procedures for the designation of appropriate caregivers for children without parents or legal guardians, who can consent on the child’s behalf or assist the child in consenting, depending on the child’s age and maturity. States should review and consider allowing children to consent to certain medical treatments and interventions without the permission of a parent, caregiver, or guardian, such as HIV testing and sexual and reproductive health services, including education and guidance on sexual health, contraception and safe abortion.
B. ARTICLE 24, PARAGRAPH 2 32. In accordance with article 24, paragraph 2, States should put in place a process for identifying and addressing other issues relevant to children’s right to health. This requires, inter alia, an in-depth analysis of the current situation in terms of priority health problems and responses, and the identification and implementation of evidence-informed interventions and policies that respond to key determinants and health problems, in consultation with children when appropriate. ARTICLE 24, PARAGRAPH 2 (A). “TO DIMINISH INFANT AND CHILD MORTALITY”
BI A CK N D E X
201
U PV EDR A TED SION 33. States have an obligation to reduce child mortality. The Committee urges particular attention to neonatal mortality, which constitutes an increasing proportion of under-5 mortality. Additionally, States parties should also address adolescent morbidity and mortality, which is generally under-prioritized. 34. Interventions should include attention to still births, pre-term birth complications, birth asphyxia, low birth weight, mother-to-child transmission of HIV and other sexually transmitted infections, neonatal infections, pneumonia, diarrhoea, measles, under- and malnutrition, malaria, accidents, violence, suicide and adolescent maternal morbidity and mortality. Strengthening health systems to provide such interventions to all children in the context of the continuum of care for reproductive, maternal, newborn and children’s health, including screening for birth defects, safe delivery services and care for the newborn are recommended. Maternal and perinatal mortality audits should be conducted regularly for the purposes of prevention and accountability. 35. States should put particular emphasis on scaling up simple, safe and inexpensive interventions that have proven to be effective, such as community-based treatments for pneumonia, diarrhoeal disease and malaria, and pay particular attention to ensuring full protection and promotion of breastfeeding practices. ARTICLE 24, PARAGRAPH 2 (B). “TO ENSURE THE PROVISION OF NECESSARY MEDICAL ASSISTANCE AND HEALTH CARE TO ALL CHILDREN WITH EMPHASIS ON THE DEVELOPMENT OF PRIMARY HEALTH CARE” 36. States should prioritize universal access for children to primary health-care services provided as close as possible to where children and their families live, particularly in community settings. While the exact configuration and content of services will vary from country to country, in all cases effective health systems will be required, including: a robust financing mechanism; a well-trained and adequately paid workforce; reliable information on which to base decisions and policies; well-maintained facilities and logistics systems to deliver quality medicines and technologies; and strong leadership and governance. Health-service provision within schools provides an important opportunity for health promotion, to screen for illness, and increases the accessibility of health services for in-school children.
and behavioural disorders; depression; eating disorders; anxiety; psychological trauma resulting from abuse, neglect, violence or exploitation; alcohol, tobacco and drug use; obsessive behaviour, such as excessive use of and addiction to the Internet and other technologies; and self-harm and suicide. There is growing recognition of the need for increased attention for behavioural and social issues that undermine children’s mental health, psychosocial wellbeing and emotional development. The Committee cautions against over-medicalization and institutionalization, and urges States to undertake an approach based on public health and psychosocial support to address mental ill-health among children and adolescents and to invest in primary care approaches that facilitate the early detection and treatment of children’s psychosocial, emotional and mental problems. 39. States have the obligation to provide adequate treatment and rehabilitation for children with mental health and psychosocial disorders while abstaining from unnecessary medication. The 2012 resolution of the World Health Assembly on the global burden of mental health disorders and the need for a comprehensive coordinated response from health and social sectors at the country level12 notes that there is increasing evidence of the effectiveness and cost-effectiveness of interventions to promote mental health and prevent mental disorders, particularly in children. The Committee strongly encourages States to scale up these interventions by mainstreaming them through a range of sectoral policies and programmes, including health, education and protection (criminal justice), with the involvement of families and communities. Children at risk because of their family and social environments require special attention in order to enhance their coping and life skills and promote protective and supportive environments. 40. There is a need to recognize the particular challenges to children’s health for children affected by humanitarian emergencies, including those resulting in large-scale displacements due to natural or man-made disasters. All possible measures should be taken to ensure that children have uninterrupted access to health services, to (re)unite them with their families and to protect them not only with physical support, such as food and clean water, but also to encourage special parental or other psychosocial care to prevent or address fear and traumas. 12 Resolution WHA65.4, adopted at the Sixty-fifth World Health Assembly on 25 May 2012.
37. Recommended packages of services should be used, for example the Essential Interventions, Commodities and Guidelines for Reproductive, Maternal, Newborn and Child Health.11 States have an obligation to make all essential medicines on the World Health Organization Model Lists of Essential Medicines, including the list for children (in paediatric formulations where possible) available, accessible and affordable. 38. The Committee is concerned by the increase in mental ill-health among adolescents, including developmental 11 The Partnership for Maternal, Newborn and Child Health, A Global Review of the Key Interventions Related to Reproductive, Maternal, Newborn and Child Health (Geneva, 2011). 202
BACK
KEYWORDS INDEX
U PV EDR A TED SION ARTICLE 24, PARAGRAPH 2 (C). “TO COMBAT DISEASE AND MALNUTRITION, INCLUDING WITHIN THE FRAMEWORK OF PRIMARY HEALTH CARE, THROUGH, INTER ALIA, THE APPLICATION OF READILY AVAILABLE TECHNOLOGY AND THROUGH THE PROVISION OF ADEQUATE NUTRITIOUS FOODS AND CLEAN DRINKING-WATER, TAKING INTO CONSIDERATION THE DANGERS AND RISKS OF ENVIRONMENTAL POLLUTION” a) The technology
application
of
readily
available
41. As new, proven technologies in children’s health, including drugs, equipment and interventions, become available, States should introduce them into policies and services. Mobile arrangements and communitybased efforts can substantially reduce some risks and should be made universally available and these include: immunization against the common childhood diseases; growth and developmental monitoring, especially in early childhood; vaccination against human papillomavirus for girls; tetanus toxoid injections for pregnant women; access to oral rehydration therapy and zinc supplementation for diarrhoea treatment; essential antibiotics and antiviral drugs; micronutrient supplements, such as vitamins A and D, iodized salt and iron supplements; and condoms. Health workers should advise parents how they can access and administer these simple technologies as required. 42. The private sector, which includes business enterprises and not-for-profit organizations that impact on health, is taking an increasingly important role in the development and refinement of technology, drugs, equipment, interventions and processes that can contribute to significant advances in children’s health. States should ensure that benefits reach all children who need them. States can also encourage public-private partnerships and sustainability initiatives that can increase access and affordability of health technology. b) The provision of adequate nutritious foods 43. Measures for fulfilling States’ obligations to ensure access to nutritionally adequate, culturally appropriate and safe food13 and to combat malnutrition will need to be adopted according to the specific context. Effective direct nutrition interventions for pregnant women include addressing anaemia and folic acid and iodine deficiency and providing calcium supplementation. Prevention and management of pre-eclampsia and eclampsia, should be ensured for all women of reproductive age to benefit their health and ensure healthy foetal and infant development. 44. Exclusive breastfeeding for infants up to 6 months of age should be protected and promoted and breastfeeding should continue alongside appropriate complementary foods preferably until two years of age, where feasible. States’ obligations in this area are defined in the “protect, promote and support” framework, adopted unanimously 13 See International Covenant on Economic, Social and Cultural Rights, art. 11, and Committee on Economic, Social and Cultural Rights, general comment No. 12 (1999) on the right to adequate food, Official Records of the Economic and Social Council, 2011, Supplement No. 2 (E/2000/22), annex V.
by the World Health Assembly.14 States are required to introduce into domestic law, implement and enforce internationally agreed standards concerning children’s right to health, including the International Code on Marketing of Breast-milk Substitutes and the relevant subsequent World Health Assembly resolutions, as well as the World Health Organization Framework Convention on Tobacco Control. Special measures should be taken to promote community and workplace support for mothers in relation to pregnancy and breastfeeding and feasible and affordable childcare services; and compliance with the International Labour Organization Convention No. 183 (2000) concerning the revision of the Maternity Protection Convention (Revised), 1952. 45. Adequate nutrition and growth monitoring in early childhood are particularly important. Where necessary, integrated management of severe acute malnutrition should be expanded through facility and communitybased interventions, as well as treatment of moderate acute malnutrition, including therapeutic feeding interventions. 46. School feeding is desirable to ensure all pupils have access to a full meal every day, which can also enhance children’s attention for learning and increase school enrolment. The Committee recommends that this be combined with nutrition and health education, including setting up school gardens and training teachers to improve children’s nutrition and healthy eating habits. 47. States should also address obesity in children, as it is associated with hypertension, early markers of cardiovascular disease, insulin resistance, psychological effects, a higher likelihood of adult obesity, and premature death. Children’s exposure to “fast foods” that are high in fat, sugar or salt, energy-dense and micronutrient-poor, and drinks containing high levels of caffeine or other potentially harmful substances should be limited. The marketing of these substances – especially when such marketing is focused on children – should be regulated and their availability in schools and other places controlled. c) The provision of clean drinking water 48. Safe and clean drinking water and sanitation are essential for the full enjoyment of life and all other human rights.15 Government departments and local authorities responsible for water and sanitation should recognize their obligation to help realize children’s right to health, and actively consider child indicators on malnutrition, diarrhoea and other water-related diseases and household size when planning and carrying out infrastructure expansion and the maintenance of water services, and when making decisions on amounts for free minimum allocation and service disconnections. States are not exempted from their obligations, even when they have privatized water and sanitation. d) Environmental pollution 14 See WHO and United Nations Children’s Fund (UNICEF), Global Strategy for Infant and Young Child Feeding (Geneva, 2003). 15 General Assembly resolution 64/292 on the human right to water and sanitation.
BI A CK N D E X
203
U PV EDR A TED SION 49. States should take measures to address the dangers and risks that local environmental pollution poses to children’s health in all settings. Adequate housing that includes nondangerous cooking facilities, a smoke-free environment, appropriate ventilation, effective management of waste and the disposal of litter from living quarters and the immediate surroundings, the absence of mould and other toxic substances, and family hygiene are core requirements to a healthy upbringing and development. States should regulate and monitor the environmental impact of business activities that may compromise children’s right to health, food security and access to safe drinking water and to sanitation. 50. The Committee draws attention to the relevance of the environment, beyond environmental pollution, to children’s health. Environmental interventions should, inter alia, address climate change, as this is one of the biggest threats to children’s health and exacerbates health disparities. States should, therefore, put children’s health concerns at the centre of their climate change adaptation and mitigation strategies. ARTICLE 24, PARAGRAPH 2 (D). “TO ENSURE APPROPRIATE PRE-NATAL AND POST-NATAL HEALTH CARE FOR MOTHERS” 51. The Committee notes that preventable maternal mortality and morbidity constitute grave violations of the human rights of women and girls and pose serious threats to their own and their children’s right to health. Pregnancy and child birth are natural processes, with known health risks that are susceptible to both prevention and therapeutic responses, if identified early. Risk situations can occur during pregnancy, delivery and the ante- and postnatal periods and have both short- and long-term impact on the health and well-being of both mother and child. 52. The Committee encourages States to adopt childsensitive health approaches throughout different periods of childhood such as (a) the baby-friendly hospital initiative16 which protects, promotes and supports rooming-in and breastfeeding; (b) child-friendly health policies focused on training health workers to provide quality services in a way that minimizes the fear, anxiety and suffering of children and their families; and (c) adolescent-friendly health services which require health practitioners and facilities to be welcoming and sensitive to adolescents, to respect confidentiality and to deliver services that are acceptable to adolescents. 53. The care that women receive before, during and after their pregnancy has profound implications for the health and development of their children. Fulfilling the obligation to ensure universal access to a comprehensive package of sexual and reproductive health interventions should be based on the concept of a continuum of care from pre-pregnancy, through pregnancy, childbirth and throughout the post-partum period. Timely and goodquality care throughout these periods provides important opportunities to prevent the intergenerational transmission
of ill-health and has a high impact on the health of the child throughout the life course. 54. The interventions that should be made available across this continuum include, but are not limited to: essential health prevention and promotion, and curative care, including the prevention of neonatal tetanus, malaria in pregnancy and congenital syphilis; nutritional care; access to sexual and reproductive health education, information and services; health behaviour education (e.g. relating to smoking and substance use); birth preparedness; early recognition and management of complications; safe abortion services and post-abortion care; essential care at childbirth; and prevention of mother-to-child HIV transmission, and care and treatment of HIV-infected women and infants. Maternal and newborn care following delivery should ensure no unnecessary separation of the mother from her child. 55. The Committee recommends that social protection interventions include ensuring universal coverage or financial access to care, paid parental leave and other social security benefits, and legislation to restrict the inappropriate marketing and promotion of breast-milk substitutes. 56. Given the high rates of pregnancy among adolescents globally and the additional risks of associated morbidity and mortality, States should ensure that health systems and services are able to meet the specific sexual and reproductive health needs of adolescents, including family planning and safe abortion services. States should work to ensure that girls can make autonomous and informed decisions on their reproductive health. Discrimination based on adolescent pregnancy, such as expulsion from schools, should be prohibited, and opportunities for continuous education should be ensured. 57. Taking into account that boys and men are crucial to planning and ensuring healthy pregnancies and deliveries, States should integrate education, awareness and dialogue opportunities for boys and men into their policies and plans for sexual, reproductive and children’s health services. ARTICLE 24, PARAGRAPH 2 (E). “TO ENSURE THAT ALL SEGMENTS OF SOCIETY, IN PARTICULAR PARENTS AND CHILDREN, ARE INFORMED, HAVE ACCESS TO EDUCATION AND ARE SUPPORTED IN THE USE OF BASIC KNOWLEDGE OF CHILDREN’S HEALTH AND NUTRITION, THE ADVANTAGES OF BREASTFEEDING, HYGIENE AND ENVIRONMENTAL SANITATION AND THE PREVENTION OF ACCIDENTS” 58. The obligations under this provision include providing health-related information and support in the use of this information. Health-related information should be physically accessible, understandable and appropriate to children’s age and educational level. 59. Children require information and education on all aspects of health to enable them to make informed choices in relation to their lifestyle and access to health services.
16 UNICEF/WHO, Baby-Friendly Hospital Initiative (1991). 204
BACK
KEYWORDS INDEX
U PV EDR A TED SION Information and life skills education should address a broad range of health issues, including: healthy eating and the promotion of physical activity, sports and recreation; accident and injury prevention; sanitation, hand washing and other personal hygiene practices; and the dangers of alcohol, tobacco and psychoactive substance use. Information and education should encompass appropriate information about children’s right to health, the obligations of Governments, and how and where to access health information and services, and should be provided as a core part of the school curriculum, as well as through health services and in other settings for children who are not in school. Materials providing information about health should be designed in collaboration with children and disseminated in a wide range of public settings. 60. Sexual and reproductive health education should include self-awareness and knowledge about the body, including anatomical, physiological and emotional aspects, and should be accessible to all children, girls and boys. It should include content related to sexual health and well-being, such as information about body changes and maturation processes, and designed in a manner through which children are able to gain knowledge regarding reproductive health and the prevention of gender-based violence, and adopt responsible sexual behaviour. 61. Information about children’s health should be provided to all parents individually or in groups, the extended family and other caregivers through different methods, including health clinics, parenting classes, public information leaflets, professional bodies, community organizations and the media. ARTICLE 24, PARAGRAPH 2 (F). “TO DEVELOP PREVENTIVE HEALTH CARE, GUIDANCE FOR PARENTS AND FAMILY PLANNING EDUCATION AND SERVICES” a) Preventive health care 62. Prevention and health promotion should address the main health challenges facing children within the community and the country as a whole. These challenges include diseases and other health challenges, such as accidents, violence, substance abuse and psychosocial and mental health problems. Preventive health care should address communicable and non-communicable diseases and incorporate a combination of biomedical, behavioural and structural interventions. Preventing noncommunicable diseases should start early in life through the promotion and support of healthy and non-violent lifestyles for pregnant women, their spouses/partners and young children. 63. Reducing the burden of child injuries requires strategies and measures to reduce the incidence of drowning, burns and other accidents. Such strategies and measures should include legislation and enforcement; product and environmental modification; supportive home visits and promotion of safety features; education, skills development and behaviour change; community-based projects; and pre-hospital and acute care, as well as rehabilitation. Efforts to reduce road traffic accidents should include legislating
for the use of seatbelts and other safety devices, ensuring access to safe transport for children and according them due consideration in road planning and traffic control. The support of the related industry and the media is essential in this respect. 64. Recognizing violence as a significant cause of mortality and morbidity in children, particularly adolescents, the Committee emphasizes the need to create an environment that protects children from violence and encourages their participation in attitudinal and behavioural changes at home, in schools and in public spaces; to support parents and caregivers in healthy child-rearing; and to challenge attitudes which perpetuate the tolerance and condoning of violence in all forms, including by regulating the depiction of violence by mass media. 65. States should protect children from solvents, alcohol, tobacco and illicit substances, increase the collection of relevant evidence and take appropriate measures to reduce the use of such substances among children. Regulation of the advertising and sale of substances harmful to children’s health and of the promotion of such items in places where children congregate, as well as in media channels and publications that are accessed by children are recommended. 66. The Committee encourages States parties that have not yet done so to ratify the international drug control conventions17 and the World Health Organization Framework Convention on Tobacco Control. The Committee underscores the importance of adopting a rights-based approach to substance use and recommends that, where appropriate, harm reduction strategies should be employed to minimize the negative health impacts of substance abuse. b) Guidance for parents 67. Parents are the most important source of early diagnosis and primary care for small children, and the most important protective factor against high-risk behaviours in adolescents, such as substance use and unsafe sex. 17 Single Convention on Narcotic Drugs, 1961; Convention on Psychotropic Substances, 1971; United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
BI A CK N D E X
205
U PV EDR A TED SION
Parents also play a central role in promoting healthy child development, protecting children from harm due to accidents, injuries and violence and mitigating the negative effects of risk behaviours. Children’s socialization processes, which are crucial for understanding and adjusting to the world in which they grow up, are strongly influenced by their parents, extended family and other caregivers. States should adopt evidence-based interventions to support good parenting, including parenting skills education, support groups and family counselling, in particular for families experiencing children’s health and other social challenges. 68. In the light of the impact of corporal punishment on children’s health, including fatal and non-fatal injury and the psychological and emotional consequences, the Committee reminds States of their obligation to take all appropriate legislative, administrative, social and educational measures to eliminate corporal punishment and other cruel or degrading forms of punishment in all settings, including the home.18 c) Family planning 69. Family planning services should be situated within comprehensive sexual and reproductive health services and should encompass sexuality education, including counselling. They can be considered part of the continuum of services described in article 24, paragraph 2 (d), and should be designed to enable all couples and individuals to make sexual and reproductive decisions freely and responsibly, including the number, spacing and timing of their children, and to give them the information and means to do so. Attention should be given to ensuring confidential, universal access to goods and services for both married and unmarried female and male adolescents. States should ensure that adolescents are not deprived of any sexual and reproductive health information or services due to providers’ conscientious objections. 70. Short-term contraceptive methods such as condoms, hormonal methods and emergency contraception should be made easily and readily available to sexually active adolescents. Long-term and permanent contraceptive methods should also be provided. The Committee recommends that States ensure access to safe abortion and post-abortion care services, irrespective of whether abortion itself is legal.
O B L I G A T I ONS
AND RESPONSIBILITIES
A. STATE PARTIES’ OBLIGATIONS TO RESPECT, PROTECT AND FULFIL 71. States have three types of obligations relating to human rights, including children’s right to health: to respect freedoms and entitlements, to protect both 206
freedoms and entitlements from third parties or from social or environmental threats, and to fulfil the entitlements through facilitation or direct provision. In accordance with article 4 of the Convention, States parties shall fulfil the entitlements contained in children’s right to health to the maximum extent of their available resources and, where needed, within the framework of international cooperation. 72. All States, regardless of their level of development, are required to take immediate action to implement these obligations as a matter of priority and without discrimination of any kind. Where the available resources are demonstrably inadequate, States are still required to undertake targeted measures to move as expeditiously and effectively as possible towards the full realization of children’s right to health. Irrespective of resources, States have the obligation not to take any retrogressive steps that could hamper the enjoyment of children’s right to health. 73. The core obligations, under children’s right to health, include: a) Reviewing the national and subnational legal and policy environment and, where necessary, amending laws and policies; b) Ensuring universal coverage of quality primary health services, including prevention, health promotion, care and treatment services, and essential drugs; c) Providing an adequate response to the underlying determinants of children’s health; and d) Developing, implementing, monitoring and evaluating policies and budgeted plans of actions that constitute a human rights-based approach to fulfilling children’s right to health. 74. States should demonstrate their commitment to progressive fulfilment of all obligations under article 24, prioritizing this even in the context of political or economic crisis or emergency situations. This requires that children’s health and related policies, programmes and services be planned, designed, financed and implemented in a sustainable manner.
B. RESPONSIBILITIES OF NONSTATE ACTORS 75. The State is responsible for realizing children’s right to health regardless of whether or not it delegates the provision of services to non-State actors. In addition to the State, a wide range of non-State actors who provide information and services related to children’s health and its underlying determinants have specific responsibilities and impact in this regard. 76. States’ obligations include a duty to promote awareness of non-State actors’ responsibilities and to ensure that all non-State actors recognize, respect and fulfil their responsibilities to the child, applying due diligence procedures where necessary. 77. The Committee calls on all non-State actors engaged
BACK
KEYWORDS INDEX
U PV EDR A TED SION
in health promotion and services, especially the private sector, including the pharmaceutical and health-technology industry as well as the mass media and health service providers, to act in compliance with the provisions of the Convention and to ensure compliance by any partners who deliver services on their behalf. Such partners include international organizations, banks, regional financial institutions, global partnerships, the private sector (private foundations and funds), donors and any other entities providing services or financial support to children’s health, particularly in humanitarian emergencies or politically unstable situations. 1. RESPONSIBILITIES OF PARENTS AND OTHER CAREGIVERS 78. The responsibilities of parents and other caregivers are expressly referred to in several provisions of the Convention. Parents should fulfil their responsibilities while always acting in the best interests of the child, if necessary with the support of the State. Taking the child’s evolving capacity into account, parents and caregivers should nurture, protect and support children to grow and develop in a healthy manner. Although not explicit in article 24, paragraph 2 (f), the Committee understands any reference to parents to also include other caregivers. 2. NON-STATE SERVICE PROVIDERS AND OTHER NON-STATE ACTORS a) Non-State service providers 79. All health service providers, including non-State actors, must incorporate and apply to the design, implementation and evaluation of their programmes and services all relevant provisions of the Convention, as well as the criteria of availability, accessibility, acceptability and quality, as described in chapter VI, section E, of the present general comment. b) Private sector 80. All business enterprises have an obligation of due diligence with respect to human rights, which include all rights enshrined under the Convention. States should require businesses to undertake children’s rights due diligence. This will ensure that business enterprises identify, prevent and mitigate their negative impact on children’s right to health including across their business relationships and within any global operations. Large business enterprises should be encouraged and, where appropriate, required to make public their efforts to address their impact on children’s rights. 81. Among other responsibilities and in all contexts, private companies should: refrain from engaging children in hazardous labour while ensuring they comply with the minimum age for child labour; comply with the International Code of Marketing of Breast-milk Substitutes and the relevant subsequent World Health Assembly resolutions; limit advertisement of energy-dense, micronutrient-poor
foods, and drinks containing high levels of caffeine or other substances potentially harmful to children; and refrain from the advertisement, marketing and sale to children of tobacco, alcohol and other toxic substances or the use of child images. 82. The Committee acknowledges the profound impact of the pharmaceutical sector on the health of children and calls on pharmaceutical companies to adopt measures towards enhancing access to medicines for children, paying particular attention to the Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines.19 At the same time, States should ensure that pharmaceutical companies monitor the use, and refrain from promoting excessive prescription and use of, drugs and medicines on children. Intellectual property rights should not be applied in ways that cause necessary medicines or goods to be unaffordable for the poor. 83. Private health insurance companies should ensure that they do not discriminate against pregnant women, children or mothers on any prohibited grounds and that they promote equality through partnerships with State health insurance schemes based on the principle of solidarity and ensuring that inability to pay does not restrict access to services. c) Mass and social media 84. Article 17 of the Convention delineates the responsibilities of mass media organizations. In the context of health, these can be further expanded to include promoting health and healthy lifestyles among children; providing free advertising space for health promotion; ensuring the privacy and confidentiality of children and adolescents; promoting access to information; not producing communication programmes and material that are harmful to child and general health; and not perpetuating health-related stigma. d) Researchers 85. The Committee underscores the responsibility of entities, including academics, private companies and others, undertaking research involving children to respect the principles and provisions of the Convention and the International Ethical Guidelines for Biomedical Research Involving Human Subjects.20 The Committee reminds researchers that the best interests of the child shall always prevail over the interest of general society or scientific advancement.
IN TERN ATION AL COOPERATION
86. States parties to the Convention have obligations not only to implement children’s right to health within their own jurisdiction, but also to contribute to global implementation through international cooperation. Article 24, paragraph 4, requires States and inter-State agencies to pay particular attention to the children’s health priorities among the poorest parts of the population and in developing States.
BI A CK N D E X
207
U PV EDR A TED SION
87. The Convention should guide all international activities and programmes of donor and recipient States related directly or indirectly to children’s health. It requires partner States to identify the major health problems affecting children, pregnant women and mothers in recipient countries and to address them in accordance with the priorities and principles established by article 24. International cooperation should support State-led health systems and national health plans. 88. States have individual and joint responsibility, including through United Nations mechanisms, to cooperate in providing disaster relief and humanitarian assistance in times of emergency. In these cases, States should consider prioritizing efforts to realize children’s right to health, including through appropriate international medical aid; distribution and management of resources, such as safe and potable water, food and medical supplies; and financial aid to the most vulnerable or marginalized children. 89. The Committee reminds States to meet the United Nations target of allocating 0.7 per cent of gross national income to international development assistance, as financial resources have important implications for the realization of children’s right to health in resource-limited States. In order to ensure the highest impact, States and inter-State agencies are encouraged to apply the Paris Principles on Aid Effectiveness and the principles of the Accra Agenda for Action.
F R A M EWOR K
FOR IMPLEMENTATION AND ACCOUNTABILITY 90. Accountability is at the core of the enjoyment of children’s right to health. The Committee reminds the State party of their obligations to ensure that relevant government authorities and service providers are held accountable for maintaining the highest possible standards of children’s health and health care until they reach 18 years of age. 91. States should provide an environment that facilitates the discharge of all duty bearers’ obligations and responsibilities with respect to children’s right to health and a regulatory framework within which all actors should operate and can be monitored, including by mobilizing political and financial support for children’s health-related issues and building the capacity of duty bearers to fulfil their obligations and children to claim their right to health. 208
92. With the active engagement of the Government, parliament, communities, civil society and children, national accountability mechanisms must be effective and transparent and aim to hold all actors responsible for their actions. They should, inter alia, devote attention to the structural factors affecting children’s health including laws, policies and budgets. Participatory tracking of financial resources and their impact on children’s health is essential for State accountability mechanisms.
A. PROMOTING KNOWLEDGE OF CHILDREN’S RIGHT TO HEALTH (ART. 42) 93. The Committee encourages States to adopt and implement a comprehensive strategy to educate children, their caregivers, policymakers, politicians and professionals working with children about children’s right to health, and the contributions they can make to its realization.
B. LEGISLATIVE MEASUREs 94. The Convention requires States parties to adopt all appropriate legislative, administrative and other measures for the implementation of children’s right to health without discrimination. National laws should place a statutory obligation on the State to provide the services, programmes, human resources and infrastructure needed to realize children’s right to health and provide a statutory entitlement to essential, child sensitive, quality health and related services for pregnant women and children irrespective of their ability to pay. Laws should be reviewed to assess any potential discriminatory effect or impediment to realizing children’s right to health and repealed where required. Where necessary, international agencies and donors should provide development aid and technical assistance for such legal reforms. 95. Legislation should fulfil a number of additional functions in the realization of children’s right to health by defining the scope of the right and recognizing children as rights-holders; clarifying the roles and responsibilities of all duty bearers; clarifying what services children, pregnant women and mothers are entitled to claim; and regulating services and medications to ensure that they are of good quality and cause no harm. States must ensure that adequate legislative and other safeguards exist to protect and promote the work of human rights defenders working on children’s right to health.
C. GOVERNANCE AND COORDINATION 96. States are encouraged to ratify and implement international and regional human rights instruments relevant to children’s health and to report on all aspects of children’s health accordingly. 97. Sustainability in children’s health policy and practice requires a long-term national plan that is supported and entrenched as a national priority. The Committee recommends that States establish and make use of a
BACK
KEYWORDS INDEX
U PV EDR A TED SION comprehensive and cohesive national coordinating framework on children’s health, built upon the principles of the Convention, to facilitate cooperation between government ministries and different levels of government as well as interaction with civil society stakeholders, including children. Given the high number of government agencies, legislative branches and ministries working on children’s health-related policies and services at different levels, the Committee recommends that the roles and responsibilities of each be clarified in the legal and regulatory framework.
103. National human rights institutions have an important role to play in reviewing and promoting accountability, providing children with relief for violations of their right to health and advocating systemic change for the realization of that right. The Committee recalls its general comment No. 2, and reminds States that the mandate of children’s commissioners or children’s ombudsmen should include ensuring the right to health, and the mandate holders should be well-resourced and independent from the Government.21
98. Particular attention must be given to identifying and prioritizing marginalized and disadvantaged groups of children, as well as children who are at risk of any form of violence and discrimination. All activities should be fully costed, financed and made visible within the national budget.
D. INVESTING IN CHILDREN’S HEALTH
99. A “child health in all policies” strategy should be used, highlighting the links between children’s health and its underlying determinants. Every effort should be made to remove bottlenecks that obstruct transparency, coordination, partnership and accountability in the provision of services affecting children’s health. 100. While decentralization is required to meet the particular needs of localities and sectors, this does not reduce the direct responsibility of the central or national Government to fulfil its obligations to all children within its jurisdiction. Decisions about allocations to the various levels of services and geographical areas should reflect the core elements of the approach to primary health care. 101. States should engage all sectors of society, including children, in implementation of children’s right to health. The Committee recommends that such engagement include: the creation of conditions conducive to the continual growth, development and sustainability of civil society organizations, including grass-roots and communitylevel groups; active facilitation of their involvement in the development, implementation and evaluation of children’s health policy and services; and provision of appropriate financial support or assistance in obtaining financial support. 1. THE ROLE OF PARLIAMENTS IN NATIONAL ACCOUNTABILITY 102. In children’s health-related issues, parliaments have the responsibility to legislate, ensuring transparency and inclusiveness, and encourage continued public debate and a culture of accountability. They should create a public platform for reporting and debating performance and promoting public participation in independent review mechanisms. They should also hold the executive accountable for implementing the recommendations emerging from independent reviews and ensure that the results of the reviews inform subsequent national plans, laws, policies, budgets and further accountability measures. 2. THE ROLE OF NATIONAL HUMAN RIGHTS INSTITUTIONS IN NATIONAL ACCOUNTABILITY
104. In their decisions about budget allocation and spending, States should strive to ensure availability, accessibility, acceptability and quality of essential children’s health services for all, without discrimination. 105. States should continually assess the impact of macroeconomic policy decisions on children’s right to health, particularly children in vulnerable situations, prevent any decisions that may compromise children’s rights, and apply the “best interests” principle when making such decisions. States should also consider obligations under article 24 in all aspects of their negotiations with international financial institutions and other donors, to ensure that children’s right to health is given adequate consideration in international cooperation. 106. The Committee recommends that States parties: a) Legislate for a specific proportion of public expenditure to be allocated to children’s health and create an accompanying mechanism that allows for systematic independent evaluation of this expenditure; b) Meet World Health Organization-recommended minimum health expenditure per capita and prioritize children’s health in budgetary allocations; c) Make investment in children visible in the State budget through detailed compilation of resources allocated to them and expended; and d) Implement rights-based budget monitoring and analysis, as well as child impact assessments on how investments, particularly in the health sector, may serve the best interests of the child. 107. The Committee underlines the importance of assessment tools in the use of resources and recognizes the need to develop measurable indicators to assist States parties in monitoring and evaluating progress in the implementation of children’s right to health.
E. THE ACTION CYCLE 108. States parties’ fulfilment of their obligations under article 24 requires engagement in a cyclical process of planning, implementation, monitoring and evaluation to then inform further planning, modified implementation and renewed monitoring and evaluation efforts. States
BI A CK N D E X
209
U PV EDR A TED SION should ensure the meaningful participation of children and incorporate feedback mechanisms to facilitate necessary adjustments throughout the cycle. 109. At the heart of the development, implementation and monitoring of policies, programmes and services that aim to realize children’s right to health is the availability of relevant and reliable data. This should include: appropriately disaggregated data across the life course of the child, with due attention to vulnerable groups; data on priority health problems, including new and neglected causes of mortality and morbidity; and data on the key determinants of children’s health. Strategic information requires data collected through routine health information systems, special surveys and research, and should include both quantitative and qualitative data. These data should be collected, analysed, disseminated and used to inform national and subnational policies and programmes. 1. PLANNING 110. The Committee notes that, in order to inform the implementation, monitoring and evaluation of activities to fulfil obligations under article 24, States should carry out situation analyses of existing problems, issues and infrastructure for delivery of services. The analysis should assess the institutional capacity and the availability of human, financial, and technical resources. Based on the outcome of the analysis, a strategy should be developed involving all stakeholders, both State and non-State actors and children. 111. The situation analysis will provide a clear idea of national and subnational priorities and strategies for their achievement. Benchmarks and targets, budgeted action plans and operational strategies should be established along with a framework for monitoring and evaluating policies, programmes and services and promoting accountability for children’s health. This will highlight how to build and strengthen existing structures and systems to be consonant with the Convention. 2. CRITERIA FOR PERFORMANCE AND IMPLEMENTATION
a) Availability 113. States should ensure that there are functioning children’s health facilities, goods, services and programmes in sufficient quantity. States need to ensure that they have sufficient hospitals, clinics, health practitioners, mobile teams and facilities, community health workers, equipment and essential drugs to provide health care to all children, pregnant women and mothers within the State. Sufficiency should be measured according to need with particular attention given to under-served and hard to reach populations.
210
a) Non-discrimination: Health and related services as well as equipment and supplies must be accessible to all children, pregnant women and mothers, in law and in practice, without discrimination of any kind; b) Physical accessibility: Health facilities must be within accessible distance for all children, pregnant women and mothers. Physical accessibility may require additional attention to the needs of children and women with disabilities. The Committee encourages States to prioritize the establishment of facilities and services in underserved areas and to invest in mobile outreach approaches, innovative technologies, and well-trained and supported community health workers, as ways of reaching especially vulnerable groups of children; c) Economic accessibility/affordability: Lack of ability to pay for services, supplies or medicines should not result in the denial of access. The Committee calls on States to abolish user fees and implement health-financing systems that do not discriminate against women and children on the basis of their inability to pay. Risk-pooling mechanisms such as tax and insurance should be implemented on the basis of equitable, means-based contributions; d) Information accessibility: Information on health promotion, health status and treatment options should be provided to children and their caregivers in a language and format that is accessible and clearly understandable to them. c) Acceptability 115. In the context of children’s right to health, the Committee defines acceptability as the obligation to design and implement all health-related facilities, goods and services in a way that takes full account of and is respectful of medical ethics as well as children’s needs, expectations, cultures, views and languages, paying special attention to certain groups, where necessary. d) Quality
112. States should ensure that all children’s health services and programmes comply with the criteria of availability, accessibility, acceptability and quality.
b) Accessibility
114. The element of accessibility has four dimensions:
116. Health-related facilities, goods and services should be scientifically and medically appropriate and of good quality. Ensuring quality requires, inter alia, that (a) treatments, interventions and medicines are based on the best available evidence; (b) medical personnel are skilled and provided with adequate training on maternal and children’s health, and the principles and provisions of the Convention; (c) hospital equipment is scientifically approved and appropriate for children; (d) drugs are scientifically approved, have not expired, are child-specific (when necessary) and are monitored for adverse reactions; and (e) regular quality of care assessments of health institutions are conducted. 3. MONITORING AND EVALUATION 117. A well-structured and appropriately disaggregated set of indicators should be established for monitoring and evaluation to meet the requirements under the performance criteria above. The data should be used to
BACK
KEYWORDS INDEX
U PV EDR A TED SION redesign and improve policies, programmes and services in support of fulfilment of children’s right to health. Health information systems should ensure that data should be reliable, transparent, and consistent, while protecting the right to privacy for individuals. States should regularly review their health information system, including vital registration and disease surveillance, with a view to its improvement. 118. National accountability mechanisms should monitor, review and act on their findings. Monitoring means providing data on the health status of children, regularly reviewing the quality of children’s health services and how much is spent thereon and where, on what and on whom it is spent. This should include both routine monitoring and periodic, in-depth evaluations. Reviewing means analysing the data and consulting children, families, other caregivers and civil society to determine whether children’s health has improved and whether Governments and other actors have fulfilled their commitments. Acting means using evidence emerging from these processes to repeat and expand what is working and to remedy and reform what is not.
F. REMEDIES FOR VIOLATIONS OF THE RIGHT TO HEALTH 119. The Committee strongly encourages States to put in place functional and accessible complaints mechanisms for children that are community-based and render it possible for children to seek and obtain reparations when their right to health is violated or at risk. States should also provide for broad rights of legal standing, including class actions. 120. States should ensure and facilitate access to courts for individual children and their caregivers and take steps to remove any barriers to access remedies for violations of children’s right to health. National human rights institutions, children’s ombudspersons, health-related professional associations and consumers’ associations can play an important role in this regard.
DIS S E MI NAT I ON 121. The Committee recommends that States widely disseminate the present general comment with parliament and across Government, including within ministries, departments and municipal and local-level bodies working on children’s health issues.
BI A CK N D E X
211
number 16
U PV EDR A TED SION
INTRODUCTION
sector often exerts a powerful influence on decisions without reference to children’s rights;
AND OBJECTIVES
1. The Committee on the Rights of the Child recognizes that the business sector’s impact on children’s rights has grown in past decades because of factors such as the globalized nature of economies and of business operations and the ongoing trends of decentralization, and outsourcing and privatizing of State functions that affect the enjoyment of human rights. Business can be an essential driver for societies and economies to advance in ways that strengthen the realization of children’s rights through, for example, technological advances, investment and the generation of decent work. However, the realization of children’s rights is not an automatic consequence of economic growth and business enterprises can also negatively impact children’s rights. 2. States have obligations regarding the impact of business activities and operations on children’s rights arising from the Convention on the Rights of the Child, the Optional Protocol on the sale of children, child prostitution and child pornography and the Optional Protocol on the involvement of children in armed conflict. These obligations cover a variety of issues, reflecting the fact that children are both rights-holders and stakeholders in business as consumers, legally engaged employees, future employees and business leaders and members of communities and environments in which business operates. The present general comment aims to clarify these obligations and outline the measures that should be undertaken by States to meet them. 3. For the purposes of the present general comment, the business sector is defined as including all business enterprises, both national and transnational, regardless of size, sector, location, ownership and structure. The general comment also addresses obligations regarding not-forprofit organizations that play a role in the provision of services that are critical to the enjoyment of children’s rights. 4. It is necessary for States to have adequate legal and institutional frameworks to respect, protect and fulfil children’s rights, and to provide remedies in case of violations in the context of business activities and operations. In this regard, States should take into account that: a) Childhood is a unique period of physical, mental, emotional and spiritual development and violations of children’s rights, such as exposure to violence, child labour or unsafe products or environmental hazards may have lifelong, irreversible and even transgenerational consequences; b) Children are often politically voiceless and lack access to relevant information. They are reliant on governance systems, over which they have little influence, to have their rights realized. This makes it hard for them to have a say in decisions regarding laws and policies that impact their rights. In the process of decision-making, States may not adequately consider the impact on children of businessrelated laws and policies, while, conversely, the business 214
c) It is generally challenging for children to obtain remedy – whether in the courts or through other mechanisms – when their rights are infringed upon, even more so by business enterprises. Children often lack legal standing, knowledge of remedy mechanisms, financial resources and adequate legal representation. Furthermore, there are particular difficulties for children in obtaining remedy for abuses that occur in the context of businesses’ global operations. 5. Given the broad range of children’s rights that can be affected by business activities and operations, the present general comment does not examine every pertinent article of the Convention and its protocols. Instead it seeks to provide States with a framework for implementing the Convention as a whole with regard to the business sector whilst focusing on specific contexts where the impact of business activities on children’s rights can be most significant. The present general comment aims to provide States with guidance on how they should: a) Ensure that the activities and operations of business enterprises do not adversely impact on children’s rights; b) Create an enabling and supportive environment for business enterprises to respect children’s rights, including across any business relationships linked to their operations, products or services and across their global operations; and c) Ensure access to effective remedy for children whose rights have been infringed by a business enterprise acting as a private party or as a State agent. 6. The present general comment draws from the experience of the Committee in reviewing State parties’ reports and its day of general discussion on the private sector as service provider in 2002.1 It is also informed by regional and international consultations with numerous stakeholders, including children, as well as by public consultations that have taken place since 2011. 7. The Committee is mindful of the relevance to the general comment of existing and evolving national and international norms, standards and policy guidance on business and human rights. The general comment is consistent with international conventions, including the International Labour Organization (ILO) Conventions No. 182 (1999) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour and No. 138 (1973) concerning Minimum Age for Admission to Employment. The Committee recognizes the relevance of the United Nations “Protect, Respect and Remedy” Framework and the Guiding Principles on Business and Human Rights adopted by the Human Rights Council, and of the ILO Tripartite Declaration of Principles concerning Multinationals and Social Policy. Other documents, such as the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises, the Global Compact, the United 1 Committee on the Rights of the Child, report on its thirty-first session, CRC/C/121, annex II.
BACK
KEYWORDS INDEX
U PV EDR A TED SION Nations Study on Violence against Children and the Children’s Rights and Business Principles have been useful references for the Committee.
GENERAL PRINCIPLES
OF THE CONVENTION AS THEY RELATE TO BUSINESS ACTIVITIES 12. Children’s rights are universal, indivisible, interdependent and interrelated. The Committee has established four general principles within the Convention as the basis for all State decisions and actions relating to business activities and operations in conformity with a child rights approach.2
SCOPE
AND APPLICATION 8. The present general comment principally addresses States’ obligations under the Convention and the Optional Protocols thereto. At this juncture, there is no international legally binding instrument on the business sector’s responsibilities vis-à-vis human rights. However, the Committee recognizes that duties and responsibilities to respect the rights of children extend in practice beyond the State and State-controlled services and institutions and apply to private actors and business enterprises. Therefore, all businesses must meet their responsibilities regarding children’s rights and States must ensure they do so. In addition, business enterprises should not undermine the States’ ability to meet their obligations towards children under the Convention and the Optional Protocols thereto. 9. The Committee acknowledges that voluntary actions of corporate responsibility by business enterprises, such as social investments, advocacy and public policy engagement, voluntary codes of conduct, philanthropy and other collective actions, can advance children’s rights. States should encourage such voluntary actions and initiatives as a means to create a business culture which respects and supports children’s rights. However, it should be emphasized that such voluntary actions and initiatives are not a substitute for State action and regulation of businesses in line with obligations under the Convention and its protocols or for businesses to comply with their responsibilities to respect children’s rights. 10. It is important to recall that the Convention and the Optional Protocols thereto engage the State as a whole, regardless of its internal structures, branches or organization. Furthermore, decentralization of power, through devolution and delegation, does not reduce the direct responsibility of the State to meet its obligations to all children within its jurisdiction. 11. The present general comment first considers the relationship between State obligations regarding business activities and the general principles of the Convention. It then defines the general nature and scope of State obligations with regards to children’s rights and the business sector. An examination follows of the scope of obligations in contexts where the impact of business activities and operations on children’s rights is most significant, including when business enterprises are service providers, children are affected in the informal economy, States engage with international organizations and businesses operate abroad in areas where there is insufficient State protection for children’s rights. The present general comment concludes by outlining a framework for implementation and dissemination.
A. THE RIGHT TO NONDISCRIMINATION (ART. 2) 13. Article 2 of the Convention calls on States to respect and ensure rights to each child in their jurisdiction “without discrimination of any kind, irrespective of a child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. States must ensure that all legislation, policies and programmes that deal with business issues are not intentionally or unintentionally discriminatory towards children in their content or implementation; for instance, those that address access to employment for parents or caregivers, or access to goods and services for children with disabilities. 14. States are required to prevent discrimination in the private sphere in general and provide remedy if it occurs. States should collect statistical data that is appropriately disaggregated and other information to identify discrimination against children in the context of business activities and operations and mechanisms should be established to monitor and investigate discriminatory practices within the business sector. States should also take steps to create a supportive environment for business to respect the right to protection from discrimination by promoting knowledge and understanding of the right within the business sector, including within the media, marketing and advertising sectors. Awareness-raising and sensitization among business enterprises should be aimed at challenging and eradicating discriminatory attitudes towards all children, especially those in vulnerable situations.
B. THE BEST INTERESTS OF THE CHILD (ART. 3, PARA. 1) 15. Article 3, paragraph 1, of the Convention provides that the best interests of the child shall be a primary consideration for States in all actions concerning children. States are obliged to integrate and apply this principle in all legislative, administrative and judicial proceedings concerning business activities and operations that directly or indirectly impact on children. For example, States must ensure that the best interests of the child are central to the development of legislation and policies that shape business activities and operations, such as those relating to 2 See Committee on the Rights of the Child, general comment No. 13 (2011) on the right of the child to be free from all forms of violence, Official Records of the General Assembly, Sixty-seventh Session, Supplement No. 41 (A/67/41), annex V, para. 59.
BI A CK N D E X
215
U PV EDR A TED SION employment, taxation, corruption, privatization, transport and other general economic, trade or financial issues. 16. Article 3, paragraph 1, is also directly applicable to business enterprises that function as private or public social welfare bodies by providing any form of direct services for children, including care, foster care, health, education and the administration of detention facilities. 17. The Convention and the Optional Protocols thereto provide the framework for assessing and determining the best interests of the child. The obligation to make the best interests of the child a primary consideration becomes crucial when States are engaged in weighing competing priorities, such as short-term economic considerations and longer-term development decisions. States should be in a position to explain how the right to have the best interests of the child considered has been respected in decisionmaking, including how it has been weighed against other considerations.3
C. THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT (ART. 6) 18. Article 6 of the Convention acknowledges that every child has an inherent right to life and that States shall ensure the survival and development of the child. The Committee states its understanding of development of the child in general comment No. 5 (2003) on general measures of implementation of the Convention, as a “holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development”.4 19. The activities and operations of business enterprises can impact on the realization of article 6 in different ways. For example, environmental degradation and contamination arising from business activities can compromise children’s rights to health, food security and access to safe drinking water and sanitation. Selling or leasing land to investors can deprive local populations of access to natural resources linked to their subsistence and cultural heritage; the rights of indigenous children may be particularly at risk in this context.5 The marketing to children of products such as cigarettes and alcohol as well as foods and drinks high in saturated fats, trans-fatty acids, sugar, salt or additives can have a long-term impact on their health.6 When business employment practices require adults to work long hours, older children, particularly girls, may take on their parent’s domestic and childcare obligations, which can negatively impact their right to education and to play; additionally, leaving children alone or in the care of older siblings can have implications for the quality of care and the health of younger children. 20. Measures for implementing article 6 with regard to 3 See General Comment No. 14 (2013) on the right of the child to have his/ her best interests taken as a primary consideration: article 3, paragraph 1, of the Convention on the Rights of the Child, forthcoming, para. 6. 4 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 41 (A/59/41), annex XI, para. 12. 5 General comment No. 11 (2009) on indigenous children and their rights under the convention, Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 41 (A/65/41), annex III, para. 35. 6 See general comment No. 15 (2013) on the right of the child to the highest attainable standard of health, forthcoming, para. 47. 216
the business sector will need to be adapted according to context and include preventive measures such as effective regulation and monitoring of advertising and marketing industries and the environmental impact of business. In the context of care of children, particularly young children, other measures will be needed for creating an enabling environment for business to respect article 6 through, for example, the introduction of family-friendly workplace policies. Such policies must take account of the impact of working hours of adults on the survival and development of the child at all stages of development and must include adequately remunerated parental leave.7
D. THE RIGHT OF THE CHILD TO BE HEARD (ART. 12) 21. Article 12 of the Convention establishes the right of every child to freely express her or his views, in all matters affecting her or him, and the subsequent right for those views to be given due weight, according to the child’s age and maturity. States should hear children’s views regularly – in line with general comment No. 128 – when developing national and local-level business-related laws and policies that may affect them. In particular, States should consult with children who face difficulties in making themselves heard, such as the children of minority and indigenous groups, children with disabilities as stated in articles 4, paragraph 3, and 7 of the Convention on the Rights of Persons with Disabilities,9 and children in similar situations of vulnerability. Governmental bodies, such as education and labour inspectorates, concerned with regulating and monitoring the activities and operations of business enterprises should ensure that they take into account the views of affected children. States should also hear children when child-rights impact assessments of proposed business-related policy, legislation, regulations, budget or other administrative decisions are undertaken. 22. Children have a specific right “to be heard in any judicial and administrative proceedings affecting the child” (art. 12, para. 3, of the Convention). This includes judicial proceedings and mechanisms of conciliation and arbitration that concern abuses of children’s rights caused or contributed to by business enterprises. As set out in general comment No. 12, children should be allowed to voluntarily participate in such proceedings and be provided the opportunity to be heard directly or indirectly through the assistance of a representative or appropriate body that has sufficient knowledge and understanding of the various aspects of the decision-making process as well as experience in working with children. 23. There may be instances when business consults communities that may be affected by a potential business project. In such circumstances, it can be critical for business to seek the views of children and consider them in decisions 7 See passim general comment No. 7 (2005) on implementing child rights in early childhood, Official Records of the General Assembly, Sixty-first Session, Supplement No. 41 (A/61/41), annex III. 8 General comment No. 12 (2009) on the right of the child to be heard, Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 41 (A/65/41), annex IV. 9 General comment No. 9 (2006) on the rights of children with disabilities, Official Records of the General Assembly, Sixty-third Session, Supplement No. 41 (A/63/41), annex III, passim.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
that affect them. States should provide businesses with specific guidance emphasizing that such processes must be accessible, inclusive and meaningful to children and take into account the evolving capacities of children and their best interests at all times. Participation should be voluntary and occur in a child-friendly environment that challenges and does not reinforce patterns of discrimination against children. Where possible, civil society organizations that are competent in facilitating child participation should be involved.
NATURE AND SCOPE OF STATE OBLIGATIONS
27. The obligation to respect also implies that a State should not engage in, support or condone abuses of children’s rights when it has a business role itself or conducts business with private enterprises. For example, States must take steps to ensure that public procurement contracts are awarded to bidders that are committed to respecting children’s rights. State agencies and institutions, including security forces, should not collaborate with or condone the infringement of the rights of the child by third parties. Furthermore, States should not invest public finances and other resources in business activities that violate children’s rights.
2. THE OBLIGATION TO PROTECT
A. GENERAL OBLIGATIONS 24. The Convention provides for a set of rights for children that impose a particular level of obligations on the State in view of the special status of children; there is a particular gravity to violations of children’s rights because they often have severe and long-lasting impact on child development. Article 4 sets out the obligation for States to undertake all appropriate legislative, administrative and other measures for the implementation of the rights in the Convention and devote the maximum amount of available resources to the realization of economic, social and cultural rights of the child. 25. Under international human rights law there are three types of obligation on States: to respect, to protect and to fulfil human rights.10 They encompass obligations of result and obligations of conduct. States are not relieved of their obligations under the Convention and the Optional Protocols thereto when their functions are delegated or outsourced to a private business or nonprofit organization. A State will thereby be in breach of its obligations under the Convention where it fails to respect, protect and fulfil children’s rights in relation to business activities and operations that impact on children. The scope of these duties is explored further below, whilst the required framework for implementation is discussed in chapter VI.
B. THE OBLIGATION TO RESPECT, PROTECT AND FULFIL 1. THE OBLIGATION TO RESPECT 26. The obligation to respect means that States should not directly or indirectly facilitate, aid and abet any 10 See Committee on Economic, Social and Cultural Rights, general comment No. 13 (1999) on the right to education, Official Records of the Economic and Social Council, 2000, Supplement No. 2 (E/2000/22), annex VI, para. 46.
infringement of children’s rights. Furthermore, States have the obligation to ensure that all actors respect children’s rights, including in the context of business activities and operations. To achieve this, all business-related policy, legislation or administrative acts and decision-making should be transparent, informed and include full and continuous consideration of the impact on the rights of the child.
28. States have an obligation to protect against infringements of rights guaranteed under the Convention and the Optional Protocols thereto by third parties. This duty is of primary importance when considering States’ obligations with regards to the business sector. It means that States must take all necessary, appropriate and reasonable measures to prevent business enterprises from causing or contributing to abuses of children’s rights. Such measures can encompass the passing of law and regulation, their monitoring and enforcement, and policy adoption that frame how business enterprises can impact on children’s rights. States must investigate, adjudicate and redress violations of children’s rights caused or contributed to by a business enterprise. A State is therefore responsible for infringements of children’s rights caused or contributed to by business enterprises where it has failed to undertake necessary, appropriate and reasonable measures to prevent and remedy such infringements or otherwise collaborated with or tolerated the infringements.
3. THE OBLIGATION TO FULFIL 29. The obligation to fulfil requires States to take positive action to facilitate, promote and provide for the enjoyment of children’s rights. This means that States must implement legislative, administrative, budgetary, judicial, promotional and other measures in conformity with article 4 relating to business activities that impact on children’s rights. Such measures should ensure the best environment for full realization of the Convention and the Optional Protocols thereto. To meet this obligation, States should provide stable and predictable legal and regulatory environments which enable business enterprises to respect children’s rights. This includes clear and well-enforced law and standards on labour, employment, health and safety, environment, anti-corruption, land use and taxation that comply with the Convention and the Optional Protocols thereto. It also includes law and policies designed to create equality of opportunity and treatment in employment; measures to promote vocational training and decent work, and to raise
BI A CK N D E X
217
U PV EDR A TED SION living standards; and policies conducive to the promotion of small and medium enterprises. States should put in place measures to promote knowledge and understanding of the Convention and the Optional Protocols thereto within government departments, agencies and other State-based institutions that shape business practices, and foster a culture in business that is respectful of children’s rights.
4. REMEDIES AND REPARATIONS 30. States have an obligation to provide effective remedies and reparations for violations of the rights of the child, including by third parties such as business enterprises. The Committee states in its general comment No. 5 that for rights to have meaning, effective remedies must be available to redress violations.11 Several provisions in the Convention call for penalties, compensation, judicial action and measures to promote recovery after harm caused or contributed to by third parties.12 Meeting this obligation entails having in place child-sensitive mechanisms – criminal, civil or administrative – that are known by children and their representatives, that are prompt, genuinely available and accessible and that provide adequate reparation for harm suffered. Agencies with oversight powers relevant to children’s rights, including labour, education and health and safety inspectorates, environmental tribunals, taxation authorities, national human rights institutions and bodies focusing on equality in the business sector can also play a role in the provision of remedies. These agencies can proactively investigate and monitor abuses and may also have regulatory powers allowing them to impose administrative sanctions on businesses which infringe on children’s rights. In all cases, children should have recourse to independent and impartial justice, or judicial review of administrative proceedings. 31. When determining the level or form of reparation, mechanisms should take into account that children can be more vulnerable to the effects of abuse of their rights than adults and that the effects can be irreversible and result in lifelong damage. They should also take into account the evolving nature of children’s development and capacities and reparation should be timely to limit ongoing and future damage to the child or children affected; for example, if children are identified as victims of environmental pollution, immediate steps should be taken by all relevant parties to prevent further damage to the health and development of children and repair any damage done. States should provide medical and psychological assistance, legal support and measures of rehabilitation to children who are victims of abuse and violence caused or contributed to by business actors. They should also guarantee non-recurrence of abuse through, for example, reform of relevant law and policy and their application, including prosecution and sanction of the business actors concerned. 11 General comment No. 5 (2003), para. 24. States should also take into account the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted by General Assembly resolution 60/147 of 2005. 12 For example, see Convention on the Rights of the Child, arts. 32, para. 2; 19; and 39. 218
STATE OBLIGATIONS
IN SPECIFIC CONTEXTS
32. Business activities and operations can impact on a broad range of children’s rights. However, the Committee has identified the following non-exhaustive, specific contexts where the impact of business enterprises can be significant and where States’ legal and institutional frameworks are often insufficient, ineffective or under pressure.
A. PROVISION OF SERVICES FOR THE ENJOYMENT OF CHILDREN’S RIGHTS 33. Business enterprises and non-profit organizations can play a role in the provision and management of services such as clean water, sanitation, education, transport, health, alternative care, energy, security and detention facilities that are critical to the enjoyment of children’s rights. The Committee does not prescribe the form of delivery of such services but it is important to emphasize that States are not exempted from their obligations under the Convention when they outsource or privatize services that impact on the fulfilment of children’s rights. 34. States must adopt specific measures that take account of the involvement of the private sector in service delivery to ensure the rights enumerated in the Convention are not compromised.13 They have an obligation to set standards in conformity with the Convention and closely monitor them. Inadequate oversight, inspection and monitoring of these bodies can result in serious violations of children’s rights such as violence, exploitation and neglect. They must ensure that such provision does not threaten children’s access to services on the basis of discriminatory criteria, especially under the principle of protection from discrimination, and that, for all service sectors, children have access to an independent monitoring body, complaints mechanisms and, where relevant, to judicial recourse that can provide them with effective remedies in case of violations. The Committee recommends that there should be a permanent monitoring mechanism or process aimed at ensuring that all non-State service providers have in place and apply policies, programmes and procedures which are in compliance with the Convention.14
B. THE INFORMAL ECONOMY 35. The informal economy engages an important part of the economically active population in many countries and contributes significantly to gross national product. However, children’s rights can be particularly at risk from business activities that take place outside of the legal and institutional frameworks that regulate and protect rights. For example, products that are manufactured or handled in this context, such as toys, garments or foodstuffs, can be unhealthy and/or unsafe for children. Also, a concentrated number of children are often found in hidden areas of informal work, such as small family enterprises, 13 See Committee on the Rights of the Child, report on its thirty-first session, CRC/C/121, annex II. 14 See general comment No. 5, para. 44.
BACK
KEYWORDS INDEX
U PV EDR A TED SION agricultural and hospitality sectors. Such work frequently involves precarious employment status, low, irregular or no remuneration, health risks, a lack of social security, limited freedom of association and inadequate protection from discrimination and violence or exploitation. It can prevent children from attending school, doing schoolwork and having adequate rest and play, potentially infringing articles 28, 29 and 31 of the Convention. Moreover, parents or caregivers working in the informal economy often have to work long hours to obtain subsistence-level earnings, thus seriously limiting their opportunities to exercise parental responsibilities or care for children in their charge. 36. States should put in place measures to ensure that business activities take place within appropriate legal and institutional frameworks in all circumstances regardless of size or sector of the economy so that children’s rights can be clearly recognized and protected. Such measures can include: awareness-raising, conducting research and gathering data on the impact of the informal economy upon children’s rights, supporting the creation of decent jobs that provide adequate pay to working parents or caregivers; implementing clear and predictable land-use laws; improving the provision of social protection to lowincome families; and supporting informal sector enterprises by providing skills training, registration facilities, effective and flexible credit and banking services, appropriate tax arrangements and access to markets, inter alia. 37. States must regulate working conditions and ensure safeguards to protect children from economic exploitation and work that is hazardous or interferes with their education or harms their health or physical, mental, spiritual, moral or social development. Such work is often found, albeit not exclusively, within the informal and family economies. Therefore, States are required to design and implement programmes aimed at reaching businesses in these contexts, including by enforcing international standards regarding legal minimum age for work and appropriate conditions of work, investing in education and vocational training and providing support for the satisfactory transition of children to the world of work. States should ensure that social and child protection policies reach all, especially families in the informal economy.
C. CHILDREN’S RIGHTS AND GLOBAL OPERATIONS OF BUSINESS 38. Business enterprises increasingly operate on a global scale through complex networks of subsidiaries, contractors, suppliers and joint ventures. Their impact on children’s rights, whether positive or negative, is rarely the result of the action or omission of a single business unit, whether it is the parent company, subsidiary, contractor, supplier or others. Instead, it may involve a link or participation between businesses units located in different jurisdictions. For example, suppliers may be involved in the use of child labour, subsidiaries may be engaged in land dispossession and contractors or licensees may be involved in the marketing of goods and services that are harmful to children. There are particular difficulties for States in discharging their obligations to respect, protect and fulfil the rights of the child in this context owing, among other
reasons, to the fact that business enterprises are often legally separate entities located in different jurisdictions even when they operate as an economic unit which has its centre of activity, registration and/or domicile in one country (the home State) and is operational in another (the host State). 39. Under the Convention, States have the obligation to respect and ensure children’s rights within their jurisdiction. The Convention does not limit a State’s jurisdiction to “territory”. In accordance with international law, the Committee has previously urged States to protect the rights of children who may be beyond their territorial borders. It has also emphasized that State obligations under the Convention and the Optional Protocols thereto apply to each child within a State’s territory and to all children subject to a State’s jurisdiction.15 40. Extraterritorial obligations are also explicitly referred to in the Optional Protocol on the sale of children, child prostitution and child pornography. Article 3, paragraph 1, provides that each State shall ensure that, as a minimum, offences under it are fully covered by its criminal or penal law, whether such offences are committed domestically or transnationally. Under article 3, paragraph 4, of Optional Protocol on the sale of children, child prostitution and child pornography, liability for these offences, whether criminal, civil or administrative, should be established for legal persons, including business enterprises. This approach is consistent with other human rights treaties and instruments that impose obligations on States to establish criminal jurisdiction over nationals in relation to areas such as complicity in torture, enforced disappearance and apartheid, no matter where the abuse and the act constituting complicity is committed. 41. States have obligations to engage in international cooperation for the realization of children’s rights beyond their territorial boundaries. The preamble and the provisions of the Convention consistently refer to the “importance of international cooperation for improving the living conditions of children in every country, in particular in the developing countries”.16 General comment No. 5 emphasizes that “implementation of the Convention is a cooperative exercise for the States of the world”.17 As such, the full realization of children’s rights under the Convention is in part a function of how States interact. Furthermore, the Committee highlights that the Convention has been nearly universally ratified; thus realization of its provisions should be of major and equal concern to both host and home States of business enterprises. 42. Host States have the primary responsibility to respect, protect and fulfil children’s rights in their jurisdiction. They must ensure that all business enterprises, including transnational corporations operating within their borders, are adequately regulated within a legal and institutional 15 General comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin, Official Records of the General Assembly, Sixty-first Session, Supplement No. 41 (A/61/41), annex II, para. 12. 16 See Convention on the Rights of the Child, arts. 4; 24, para. 4; 28, para. 3; 17 and 22, para. 2; as well as Optional Protocol on the sale of children, child prostitution and child pornography, art. 10, and Optional Protocol on the involvement of children in armed conflict, art. 10. 17 General comment No. 5, para. 60.
BI A CK N D E X
219
U PV EDR A TED SION framework that ensures that they do not adversely impact on the rights of the child and/or aid and abet violations in foreign jurisdictions. 43. Home States also have obligations, arising under the Convention and the Optional Protocols thereto, to respect, protect and fulfil children’s rights in the context of businesses’ extraterritorial activities and operations, provided that there is a reasonable link between the State and the conduct concerned. A reasonable link exists when a business enterprise has its centre of activity, is registered or domiciled or has its main place of business or substantial business activities in the State concerned.18 When adopting measures to meet this obligation, States must not violate the Charter of the United Nations and general international law nor diminish the obligations of the host State under the Convention. 44. States should enable access to effective judicial and non-judicial mechanisms to provide remedy for children and their families whose rights have been violated by business enterprises extraterritorially when there is a reasonable link between the State and the conduct concerned. Furthermore, States should provide international assistance and cooperation with investigations and enforcement of proceedings in other States. 45. Measures to prevent the infringement of children’s rights by business enterprises when they are operating abroad include: a) Making access to public finance and other forms of public support, such as insurance, conditional on a business carrying out a process to identify, prevent or mitigate any negative impacts on children’s rights in their overseas operations; b) Taking into account the prior record of business enterprises on children’s rights when deciding on the provision of public finance and other forms of official support; c) Ensuring that State agencies with a significant role regarding business, such as export credit agencies, take steps to identify, prevent and mitigate any adverse impacts the projects they support might have on children’s rights before offering support to businesses operating abroad and stipulate that such agencies will not support activities that are likely to cause or contribute to children’s rights abuses. 46. Both home and host States should establish institutional and legal frameworks that enable businesses to respect children’s rights across their global operations. Home States should ensure that there are effective mechanisms in place so that the government agencies and institutions with responsibility for implementation of the Convention and the Optional Protocols thereto coordinate effectively with those responsible for trade and investment abroad. They should also build capacity so that development assistance agencies and overseas missions that are responsible for promoting trade can integrate business issues into bilateral human rights dialogues, including children’s rights, with foreign Governments. States that adhere to the OECD 18 See Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights, principle 25 (2012). 220
Guidelines for Multinational Enterprises should support their national contact points in providing mediation and conciliation for matters that arise extraterritorially by ensuring that they are adequately resourced, independent and mandated to work to ensure respect for children’s rights in the context of business issues. Recommendations issued by bodies such as the OECD national contact points should be given adequate effect.
D. INTERNATIONAL ORGANIZATIONS 47. All States are called upon, under article 4 of the Convention, to cooperate directly in the realization of the rights in the Convention through international cooperation and through their membership in international organizations. In the context of business activities, these international organizations include international development, finance and trade institutions, such as the World Bank Group, the International Monetary Fund and the World Trade Organization, and others of a regional scope, in which States act collectively. States must comply with their obligations under the Convention and the Optional Protocols thereto when acting as members of such organizations and they should not accept loans from international organizations, or agree to conditions set forth by such organizations, if these loans or policies are likely to result in violations of the rights of children. States also retain their obligations in the field of development cooperation and should ensure that cooperation policies and programmes are designed and implemented in compliance with the Convention and the Optional Protocols thereto. 48. A State engaged with international development, finance and trade organizations must take all reasonable actions and measures to ensure that such organizations act in accordance with the Convention and the Optional Protocols thereto in their decision-making and operations, as well as when entering into agreements or establishing guidelines relevant to the business sector. Such actions and measures should go beyond the eradication of child labour and include the full realization of all children’s rights. International organizations should have standards and procedures to assess the risk of harm to children in conjunction with new projects and to take measures to mitigate risks of such harm. These organizations should put in place procedures and mechanisms to identify, address and remedy violations of children’s rights in accordance with existing international standards, including when they are committed by or result from activities of businesses linked to or funded by them.
E. EMERGENCIES AND CONFLICT SITUATIONS 49. There are particular challenges for both host and home States in meeting their obligations to respect, protect and fulfil the rights of the child when businesses are operating in situations where protection institutions do not work properly because of conflict, disaster or the breakdown of social or legal order. It is important to emphasize that the Convention and the Optional Protocols thereto apply
BACK
KEYWORDS INDEX
U PV EDR A TED SION
FRAMEWORK
FOR IMPLEMENTATION
at all times and that there are no provisions allowing for derogation of their provisions during emergencies. 50. In such contexts, there may be a greater risk of child labour being used by business enterprises (including within supply chains and subsidiaries), of child soldiers being used or of corruption and tax evasion occurring. Given the heightened risks, home States should require business enterprises operating in situations of emergency and conflict to undertake stringent child-rights due diligence tailored to their size and activities. Home States should also develop and implement laws and regulations that address specific foreseeable risks to children’s rights from business enterprises that are operating transnationally. This can include a requirement to publish actions taken to ensure that companies’ operations do not contribute to serious violations of children’s rights, and a prohibition on the sale or transfer of arms and other forms of military assistance when the final destination is a country in which children are known to be, or may potentially be, recruited or used in hostilities. 51. A home State should provide businesses with current, accurate and comprehensive information of the local children’s rights context when they are operating or planning to operate in areas affected by conflict or emergency. Such guidance should emphasize that companies have identical responsibilities to respect children’s rights in such settings as they do elsewhere. Children can be affected by violence, including sexual abuse or exploitation, child trafficking and gender-based violence in conflict zones and this must be recognized by States when providing guidance to businesses. 52. The obligations of host and home States under the relevant provisions of the Convention should be emphasized when business is operating in areas affected by conflict: Article 38 requires respect for the rules of international humanitarian law, article 39 obliges States to provide appropriate psychological recovery and social reintegration and the Optional Protocol on the involvement of children in armed conflict contains provisions regarding recruitment of children into armed forces under 18 years of age. When operating in areas affected by conflict, business enterprises may employ private security companies and may risk being involved in violations such as exploitation and/or use of violence against children in the course of protecting facilities or other operations. To prevent this, both home and host States should introduce and implement national legislation that includes a specific prohibition on such companies recruiting children or using them in hostilities; requirements for effective measures to protect children from violence and exploitation; and mechanisms for holding personnel accountable for abuses of children’s rights.
A. LEGISLATIVE, REGULATORY AND ENFORCEMENT MEASURES 1. LEGISLATION AND REGULATION 53. Legislation and regulation are essential instruments for ensuring that the activities and operations of business enterprises do not adversely impact on or violate the rights of the child. States should enact legislation that gives effect to the rights of the child by third parties and provides a clear and predictable legal and regulatory environment which enables business enterprises to respect children’s rights. To meet their obligation to adopt appropriate and reasonable legislative and regulatory measures to ensure that business enterprises do not infringe on children’s rights, States will need to gather data, evidence and research for identifying specific business sectors of concern. 54. In conformity with article 18, paragraph 3, of the Convention, States should create employment conditions within business enterprises which assist working parents and caregivers in fulfilling their responsibilities to children in their care such as: the introduction of family-friendly workplace policies, including parental leave; support and facilitate breastfeeding; access to quality childcare services; payment of wages sufficient for an adequate standard of living; protection from discrimination and violence in the workplace; and, security and safety in the workplace. 55. Ineffective taxation systems, corruption and mismanagement of government revenues from, among others, State-owned businesses and corporate taxation, can limit the resources available for the fulfilment of children’s rights in accordance with article 4 of the Convention. In addition to any existing obligations under anti-bribery and anti-corruption instruments,19 States should develop and implement effective laws and regulations to obtain and manage revenue flows from all sources, ensuring transparency, accountability and equity. 56. States should implement article 32 of the Convention to ensure the prohibition of economic exploitation and hazardous work for children. Some children are above the minimum working age, in line with international standards, and therefore can be legitimately working as employees, while still needing to be protected, for instance, from work that is hazardous to their health, safety or moral development and ensuring that their rights to education, development and recreation are promoted and protected.20 States must set a minimum age for employment; appropriately regulate working hours and 19 Such as the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and/or the United Nations Convention Against Corruption. 20 See general comment No. 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts (art. 31), forthcoming.
BI A CK N D E X
221
U PV EDR A TED SION
conditions; and establish penalties to effectively enforce article 32. They must have functioning labour inspection and enforcement systems and capacities in place. States should also ratify and enact into domestic law both of the fundamental ILO conventions relating to child labour.21 Under article 39, States must take all appropriate measures to promote the physical and psychological recovery and social reintegration of a child who has experienced any form of violence, neglect, exploitation, or abuse, including economic exploitation. 57. States are also required to implement and enforce internationally agreed standards concerning children’s rights, health and business, including the World Health Organization Framework Convention on Tobacco Control, and the International Code of Marketing of Breastmilk Substitutes and relevant subsequent World Health Assembly resolutions. The Committee is aware that the activities and operations of the pharmaceutical sector can have a profound impact on the health of children. Pharmaceutical companies should be encouraged to improve the access, availability, acceptability and quality of medicines for children taking into consideration existing guidance.22 Furthermore, intellectual property rights should be applied in ways that promote the affordability of medicines.23 58. The mass media industry, including advertising and marketing industries, can have positive as well as negative impacts on children’s rights. Under article 17 of the Convention, States have obligations to encourage the mass media, including private media, to disseminate information and materials of social and cultural benefit to the child, for example regarding healthy lifestyles. The media must be regulated appropriately to protect children from harmful information, especially pornographic materials and materials that portray or reinforce violence, discrimination and sexualized images of children, while recognizing children’s right to information and freedom of expression. States should encourage the mass media to develop guidelines to ensure full respect for the rights of the child, including their protection from violence and from portrayals that perpetuate discrimination, in all media coverage. States should establish copyright exceptions which permit the reproduction of books and other printed publications in formats that are accessible for children with visual or other impairments. 21 ILO Conventions Nos. 182 (1999) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour and 138 (1973) concerning Minimum Age for Admission to Employment. 22 Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines; Human Rights Council resolution 15/22. 23 See general comment No. 15, para. 82; World Trade Organization, Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2. 222
59. Children may regard marketing and advertisements that are transmitted through the media as truthful and unbiased and consequently can consume and use products that are harmful. Advertising and marketing can also have a powerful influence over children’s self-esteem, for example when portraying unrealistic body images. States should ensure that marketing and advertising do not have adverse impacts on children’s rights by adopting appropriate regulation and encouraging business enterprises to adhere to codes of conduct and use clear and accurate product labelling and information that allow parents and children to make informed consumer decisions. 60. Digital media is of particular concern, as many children can be users of the Internet but also become victims of violence such as cyber-bullying, cyber-grooming, trafficking or sexual abuse and exploitation through the Internet. Although companies may not be directly involved in such criminal acts, they can be complicit in these violations through their actions; for example, child sex tourism can be facilitated by travel agencies operating on the Internet, as they enable the exchange of information and the planning of sex tourism activities. Child pornography can be indirectly facilitated by Internet businesses and credit-card providers. As well as meeting their obligations under the Optional Protocol on the sale of children, child prostitution and child pornography, States should provide children with age-appropriate information regarding web-related safety so they can manage the risks and know where to go for help. They should coordinate with the information and communication technology industry so that it develops and puts in place adequate measures to protect children from violent and inappropriate material.
2. ENFORCEMENT MEASURES 61. Generally, it is the lack of implementation or the poor enforcement of laws regulating business that pose the most critical problems for children. There are a number of measures States should employ to ensure effective implementation and enforcement, including: a) Strengthening regulatory agencies responsible for the oversight of standards relevant to children’s rights such as health and safety, consumer rights, education, environment, labour and advertising and marketing so that they have sufficient powers and resources to monitor and to investigate complaints and to provide and enforce remedies for abuses of children’s rights; b) Disseminating laws and regulations regarding children’s rights and business to stakeholders, including children and business enterprises; c) Training judges and other administrative officials as well as lawyers and legal aid providers to ensure the correct application of the Convention and its protocols on business and children’s rights, international human rights standards and relevant national legislation and to promote the development of national jurisprudence; and d) Providing effective remedy through judicial or nonjudicial mechanisms and effective access to justice.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 3. CHILDREN’S RIGHTS AND DUE DILIGENCE BY BUSINESS ENTERPRISES 62. To meet their obligation to adopt measures to ensure that business enterprises respect children’s rights, States should require businesses to undertake child-rights due diligence. This will ensure that business enterprises identify, prevent and mitigate their impact on children’s rights including across their business relationships and within global operations.24 Where there is a high risk of business enterprises being involved in violations of children’s rights because of the nature of their operations or their operating contexts, States should require a stricter process of due diligence and an effective monitoring system. 63. Where child-rights due diligence is subsumed within a more general process of human-rights due diligence, it is imperative that the provisions of the Convention and the Optional Protocols thereto influence decisions. Any plan of action and measures to prevent and/or remedy human rights abuses must have special consideration for the differentiated impact on children. 64. States should lead by example, requiring all Stateowned enterprises to undertake child-rights due diligence and to publicly communicate their reports on their impact on children’s rights, including regular reporting. States should make public support and services, such as those provided by an export credit agency, development finance and investment insurance conditional on businesses carrying out child-rights due diligence. 65. As part of child-rights due diligence, large business enterprises should be encouraged and, where appropriate, required to make public their efforts to address childrights impacts. Such communication should be available, efficient and comparable across enterprises and address measures taken by business to mitigate potential and actual adverse impacts for children caused by their activities. Business enterprises should be required to publish the actions taken to ensure that the goods and services they produce or commercialize do not involve serious violations of children’s rights, such as slavery or forced labour. Where reporting is mandatory, States should put in place verification and enforcement mechanisms to ensure compliance. States may support reporting by creating instruments to benchmark and recognize good performance with regard to children’s rights.
B. REMEDIAL MEASURES 66. Children often find it difficult to access the justice system to seek effective remedies for abuse or violations of their rights when business enterprises are involved. Children may lack legal standing, which prevents them from pursuing a claim; children and their families often lack knowledge about their rights and the mechanisms and procedures available to them to seek redress or may lack confidence in the justice system. States may not always investigate breaches of criminal, civil or administrative laws committed by business enterprises. There are vast power imbalances between children and business and, often, prohibitive costs involved in litigation against companies 24 See UNICEF, Save the Children and Global Compact, Children’s Rights and Business Principles (2011).
as well as difficulties in securing legal representation. Cases involving business are frequently settled out of court and in the absence of a body of developed case law; children and their families in jurisdictions where judicial precedent is persuasive may be more likely to abandon undertaking litigation given uncertainty surrounding the outcome. 67. There are particular difficulties in obtaining remedy for abuses that occur in the context of businesses’ global operations. Subsidiaries or others may lack insurance or have limited liability; the way in which transnational corporations are structured in separate entities can make identification and attribution of legal responsibility to each unit challenging; access to information and evidence located in different countries can be problematic when building and defending a claim; legal aid may be difficult to obtain in foreign jurisdictions and various legal and procedural hurdles can be used to defeat extraterritorial claims. 68. States should focus their attention on removing social, economic and juridical barriers so that children can in practice have access to effective judicial mechanisms without discrimination of any kind. Children and their representatives should be provided with information about remedies through, for example, the school curriculum, youth centres or community-based programmes. They should be allowed to initiate proceedings in their own right and have access to legal aid and the support of lawyers and legal aid providers in bringing cases against business enterprises to ensure equality of arms. States that do not already have provision for collective complaints, such as class actions and public interest litigation, should introduce these as a means of increasing accessibility to the courts for large numbers of children similarly affected by business actions. States may have to provide special assistance to children who face obstacles to accessing justice, for example, because of language or disability or because they are very young. 69. Age should not be a barrier to a child’s right to participate fully in the justice process. Likewise, special arrangements should be developed for child victims and witnesses in both civil and criminal proceedings, in line with the Committee’s general comment No. 12. Furthermore, States should implement the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime.25 Confidentiality and privacy must be respected and children should be kept informed of progress at all stages of the process, giving due weight to the child’s maturity and any speech, language or communication difficulties they might have. 70. The Optional Protocol on the sale of children, child prostitution and child pornography requires that States enact criminal legislation that also applies to legal entities, including business enterprises. States should consider the adoption of criminal legal liability – or another form of legal liability of equal deterrent effect – for legal entities, including business enterprises, in cases concerning serious violations of the rights of the child, such as forced labour. National tribunals should have jurisdiction over these serious violations, in accordance with accepted rules of jurisdiction. 25 Adopted by the Economic and Social Council in its resolution 2005/20.
BI A CK N D E X
223
U PV EDR A TED SION
D. COORDINATION AND MONITORING MEASURES 71. Non-judicial mechanisms, such as mediation, conciliation and arbitration, can be useful alternatives for resolving disputes concerning children and enterprises. They must be available without prejudice to the right to judicial remedy. Such mechanisms can play an important role alongside judicial processes, provided they are in conformity with the Convention and the Optional Protocols thereto and with international principles and standards of effectiveness, promptness and due process and fairness. Grievance mechanisms established by business enterprises can provide flexible and timely solutions and at times it may be in a child’s best interests for concerns raised about a company’s conduct to be resolved through them. These mechanisms should follow criteria that include: accessibility, legitimacy, predictability, equitability, rights compatibility, transparency, continuous learning and dialogue.26 In all cases, access to courts or judicial review of administrative remedies and other procedures should be available. 72. States should make every effort to facilitate access to international and regional human rights mechanisms, including the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, so that an individual child or a group of children, or others acting on his/her/their behalf, are able to obtain remedy for State failure to adequately respect, protect and fulfil children’s rights in relation to business activities and operations.
C. POLICY MEASURES 73. States should encourage a business culture that understands and fully respects children’s rights. To this end, States should include the issue of children’s rights and business in the overall context of the national policy framework for implementation of the Convention. They should develop guidance that explicitly sets out government expectations for business enterprises to respect children’s rights in the context of its own business activities, as well as within business relationships linked to operations, products or services and activities abroad when they operate transnationally. This should include the implementation of zero-tolerance policies for violence in all business activities and operations. As required, States should signpost and encourage adherence to relevant corporate responsibility initiatives. 74. In many contexts, small and medium-sized enterprises represent a large part of the economy and it is particularly important that States provide them with readily available tailored guidance and support on how to respect children’s rights and comply with national legislation while avoiding unnecessary administrative burdens. States should also encourage larger companies to use their influence over small and medium-sized enterprises to strengthen children’s rights throughout their value chains.
26 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, A/HRC/17/31, guiding principle 31. 224
1. COORDINATION 75. Full implementation of the Convention and the Optional Protocols thereto requires effective crosssectoral coordination, among government agencies and departments and across different levels of government, from local to regional and central.27 Typically, the departments and agencies directly involved with business policies and practices work separately from departments and agencies with direct responsibility for children’s rights. States must ensure that governmental bodies, as well as parliamentarians, that shape business law and practices are aware of the State’s obligations with regard to children’s rights. They may require relevant information, training and support so that they are equipped to ensure full compliance with the Convention when developing law and policy and entering into economic, trade and investment agreements. National human rights institutions can play an important role as catalysts for linking different governmental departments concerned with children’s rights and with business.
2. MONITORING 76. States have an obligation to monitor violations of the Convention and the Optional Protocols thereto committed or contributed to by business enterprises, including in their global operations. This can be achieved, for instance, through: gathering data that can be used to identify problems and inform policy; investigating abuses; collaborating with civil society and national human rights institutions; and making business accountable publicly by using business reporting on their impact on children’s rights to assess their performance. In particular, national human rights institutions can be involved, for example in receiving, investigating and mediating complaints of violations; conducting public inquiries into large-scale abuses, mediating in conflict situations and undertaking legislative reviews to ensure compliance with the Convention. Where necessary, States should broaden the legislative mandate of national human rights institutions to accommodate children’s rights and business. 77. When States develop national strategies and plans of action for implementation of the Convention and the Optional Protocols thereto, they should include explicit reference to the measures required to respect, protect and fulfil children’s rights in the actions and operations of business enterprises. States should also ensure that they monitor progress in implementation of the Convention in the activities and operations of business. This can be achieved both internally through the use of child rights impact assessments and evaluations, as well as through collaboration with other bodies such as parliamentary committees, civil society organizations, professional associations and national human rights institutions. Monitoring should include asking children directly for their views on the impact of business on their rights. Different mechanisms for consultation can be used, such as youth 27 General comment No. 5, para. 37.
BACK
KEYWORDS INDEX
U PV EDR A TED SION councils and parliaments, social media, school councils and associations of children.
3. CHILD-RIGHTS IMPACT ASSESSMENTS 78. Ensuring that the best interests of the child are a primary consideration in business-related legislation and policy development and delivery at all levels of government demands continuous child-rights impact assessments. These can predict the impact of any proposed business-related policy, legislation, regulations, budget or other administrative decisions which affect children and the enjoyment of their rights28 and should complement ongoing monitoring and evaluation of the impact of laws, policies and programmes on children’s rights. 79. Different methodologies and practices may be developed when undertaking child-rights impact assessments. At a minimum they must use the framework of the Convention and the Optional Protocols thereto, as well as relevant concluding observations and general comments issued by the Committee. When States conduct broader impact assessments of business-related policy, legislation or administrative practices, they should ensure that these assessments are underpinned by the general principles of the Convention and the Optional Protocols thereto and have special regard for the differentiated impact on children of the measures under consideration.29 80. Child-rights impact assessments can be used to consider the impact on all children affected by the activities of a particular business or sector but can also include assessment of the differential impact of measures on certain categories of children. The assessment of the impact itself may be based upon input from children, civil society and experts, as well as from relevant government departments, academic research and experiences documented in the country or elsewhere. The analysis should result in recommendations for amendments, alternatives and improvements and be publicly available.30
awareness. Education, training and awareness-raising about the Convention should also be targeted at business enterprises to emphasize the status of the child as a holder of human rights, encourage active respect for all of the Convention’s provisions and challenge and eradicate discriminatory attitudes towards all children and especially those in vulnerable and disadvantaged situations. In this context, the media should be encouraged to provide children with information about their rights in relation to business and raise awareness among businesses of their responsibility to respect children’s rights. 83. The Committee highlights that national human rights institutions can be involved in raising awareness of the Convention’s provisions amongst business enterprises, for instance by developing good practice guidance and policies for businesses and disseminating them. 84. Civil society has a critical role in the independent promotion and protection of children’s rights in the context of business operations. This includes monitoring and holding business accountable; supporting children to have access to justice and remedies; contributing to childrights impact assessments; and raising awareness amongst businesses of their responsibility to respect children’s rights. States should ensure conditions for an active and vigilant civil society, including effective collaboration with and support to independent civil society organizations, child and youth-led organizations, academia, chambers of commerce and industry, trade unions, consumer associations and professional institutions. States should refrain from interfering with these and other independent organizations and facilitate their involvement in public policy and programmes relating to children’s rights and business.
81. To ensure an impartial and independent process, the State may consider appointing an external actor to lead the assessment process. This can have significant advantages, but the State, as the party ultimately responsible for the result, must ensure that the actor undertaking the assessment is competent, honest and impartial.
E. COLLABORATIVE AND AWARENESS-RAISING MEASURES 82. While it is the State that takes on obligations under the Convention, the task of implementation needs to engage all sectors of society, including business, civil society and children themselves. The Committee recommends that States adopt and implement a comprehensive strategy to inform and educate all children, parents and caregivers that business has a responsibility to respect children’s rights wherever they operate, including through childfriendly and age-appropriate communications, for example through the provision of education about financial 28 General comment No. 5, para. 45. 29 General comment No. 14, para. 99. 30 Ibid.
BI A CK N D E X
225
U PV EDR A TED SION
DISSEMINATION 85. The Committee recommends that States widely disseminate the present general comment with parliament and across government, including within ministries, departments and municipal/local-level bodies working on business issues and those responsible for trade and investment abroad, such as development assistance agencies and overseas missions. The present general comment should be distributed to business enterprises, including those operating transnationally, as well as to small and medium-sized enterprises and actors in the informal sector. It should also be distributed and made known to professionals working for and with children, including judges, lawyers and legal aid providers, teachers, guardians, social workers, officials of public or private welfare institutions, as well as to all children and civil society. This will require translating it into relevant languages, making accessible and child-friendly versions available, holding workshops and seminars to discuss its implications and how best to implement it, and incorporating it into the training of all relevant professionals. 86. States should include information in their periodic reporting to the Committee on the challenges they face and the measures they have taken to respect, protect and fulfil children’s rights in the context of the activities and operations of business enterprises both domestically and, where appropriate, transnationally.
226
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
227
number 17
U PV EDR A TED SION
IN T R O DUC T I ON 1. The importance of play and recreation in the life of every child has long been acknowledged by the international community, as evidenced by the proclamation in the 1959 Declaration of the Rights of the Child: “The child shall have full opportunity for play and recreation […]; society and the public authorities shall endeavour to promote the enjoyment of this right” (art. 7). This proclamation was further strengthened in the Convention on the Rights of the Child (the Convention) of 1989 which explicitly states in article 31 that “States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and and to participate freely in cultural life and the arts.” 2. However, based on its reviews of the implementation of the rights of the child under the Convention, the Committee is concerned by the poor recognition given by States to the rights contained in article 31. Poor recognition of their significance in the lives of children results in lack of investment in appropriate provisions, weak or nonexistent protective legislation and the invisibility of children in national and local-level planning. In general, where investment is made, it is in the provision of structured and organized activities, but equally important is the need to create time and space for children to engage in spontaneous play, recreation and creativity, and to promote societal attitudes that support and encourage such activity. 3. The Committee is particularly concerned about the difficulties faced by particular categories of children in relation to enjoyment and conditions of equality of the rights defined in article 31, especially girls, poor children, children with disabilities, indigenous children, children belonging to minorities, among others. 4. Furthermore, profound changes in the world are having a major impact on children’s opportunities to enjoy the rights provided for in article 31. The urban population, especially in developing countries, is increasing significantly, as is violence worldwide in all its forms – at home, in schools, in mass media, in the streets. The implications, along with the commercialization of play provisions, are influencing the ways children engage in recreation, as well as in cultural and artistic activities. For many children in both rich and poor countries, child labour, domestic work or increasing educational demands serve to reduce the time available for the enjoyment of these rights. 5. This general comment has been developed to address these concerns, raise the profile, awareness and understanding among States of the centrality of the rights in article 31 in the life and development of every child, and urge them to elaborate measures to ensure their 230
implementation. The rights in article 31 have universal application in the diversity of communities and societies in the world and respect the value of all cultural traditions and forms. Every child should be able to enjoy these rights regardless of where he or she lives, his or her cultural background or his or her parental status. 6. This general comment only touches tangentially on the issue of sport, as it is a major issue in its own right. In respect of cultural life, the general comment focuses primarily on aspects related to creative or artistic activities, rather than the broader definition embraced in article 30 on the right of the child to enjoy his or her own culture.
O BJECTIVES 7. The present general comment seeks to enhance the understanding of the importance of article 31 for children’s well-being and development; to ensure respect for and strengthen the application of the rights under article 31, as well as other rights in the Convention, and to highlight the implications for the determination of: a) Consequent obligations of States in the elaboration of all implementation measures, strategies and programmes aimed at the realization and full implementation of the rights defined in article 31; b) The role and responsibilities of the private sector, including companies working in the areas of recreation, cultural and artistic activities, as well as civil society organizations providing such services for children; c) Guidelines for all individuals working with children, including parents, on all actions undertaken in the area of play and recreation.
SIGN IFICAN CE
OF ARTICLE 31 IN CHILDREN’S L I V ES 8. Article 31 must be understood holistically, both in terms of its constituent parts and also in its relationship with the Convention in its entirety. Each element of article 31is mutually linked and reinforcing, and when realized, serves to enrich the lives of children. Together,
BACK
KEYWORDS INDEX
U PV EDR A TED SION
they describe conditions necessary to protect the unique and evolving nature of childhood. Their realization is fundamental to the quality of childhood, to children’s entitlement to optimum development, to the promotion of resilience and to the realization of other rights. Indeed, environments in which play and recreational opportunities are available to all children provide the conditions for creativity; opportunities to exercise competence through self-initiated play enhances motivation, physical activity and skills development; immersion in cultural life enriches playful interactions; rest ensures that children have the necessary energy and motivation to participate in play and creative engagement. 9. Play and recreation are essential to the health and well-being of children and promote the development of creativity, imagination, self-confidence, self-efficacy, as well as physical, social, cognitive and emotional strength and skills. They contribute to all aspects of learning;1 they are a form of participation in everyday life and are of intrinsic value to the child, purely in terms of the enjoyment and pleasure they afford. Research evidence highlights that playing is also central to children’s spontaneous drive for development, and that it performs a significant role in the development of the brain, particularly in the early years. Play and recreation facilitate children’s capacities to negotiate, regain emotional balance, resolve conflicts and make decisions. Through their involvement in play and recreation, children learn by doing; they explore and experience the world around them; experiment with new ideas, roles and experiences and in so doing, learn to understand and construct their social position within the world. 10. Both play and recreation can take place when children are on their own, together with their peers or with supportive adults. Children’s development can be supported by loving and caring adults as they relate to children through play. Participation with children in play provides adults with unique insights and understanding into the child’s perspectives. It builds respect between generations, contributes to effective understanding and communication between children and adults and affords opportunities to provide guidance and stimulus. Children benefit from recreational activities involving adults, including voluntary participation in organized sports, games and other recreational activities. However, the benefits are diminished, particularly in the development of creativity, leadership and team spirit if control by adults is so pervasive that it undermines the child’s own efforts to organize and conduct his or her play activities. 11. Involvement in a community’s cultural life is an important element of children’s sense of belonging. Children inherit and experience the cultural and artistic life of their family, community and society, and through that process, they 1 UNESCO, Education for the twenty-first century: issues and prospects (Paris, 1998).
discover and forge their own sense of identity and, in turn, contribute to the stimulation and sustainability of cultural life and traditional arts. 12. In addition, children reproduce, transform, create and transmit culture through their own imaginative play, songs, dance, animation, stories, painting, games, street theatre, puppetry, festivals, and so on. As they gain understanding of the cultural and artistic life around them from adult and peer relationships, they translate and adapt its meaning through their own generational experience. Through engagement with their peers, children create and transmit their own language, games, secret worlds, fantasies and other cultural knowledge. Children’s play generates a “culture of childhood,” from games in school and in the playground to urban activities such as playing marbles, free running, street art and so on. Children are also at the forefront in using digital platforms and virtual worlds to establish new means of communication and social networks, through which different cultural environments and artistic forms are being forged. Participation in cultural and artistic activities are necessary for building children’s understanding, not only of their own culture, but other cultures, as it provides opportunities to broaden their horizons and learn from other cultural and artistic traditions, thus contributing towards mutual understanding and appreciation of diversity. 13. Finally, rest and leisure are as important to children’s development as the basics of nutrition, housing, health care and education. Without sufficient rest, children will lack the energy, motivation and physical and mental capacity for meaningful participation or learning. Denial of rest can have an irreversible physical and psychological impact on the development, health and well-being of children. Children also need leisure, defined as time and space without obligations, entertainment or stimulus, which they can choose to fill as actively or inactively as they wish.
LEGAL AN ALYSIS OF ARTICLE 31
A. ARTICLE 31, PARAGRAPH 1 14. States parties recognize the right of the child to: a) Rest: The right to rest requires that children are afforded sufficient respite from work, education or exertion of any kind, to ensure their optimum health and well-being. It also requires that they are provided with the opportunity for adequate sleep. In fulfilling the right to both respite
BI A CK N D E X
231
U PV EDR A TED SION from activity and adequate sleep, regard must be afforded to children’s evolving capacities and their developmental needs. b) Leisure: Leisure refers to time in which play or recreation can take place. It is defined as free or unobligated time that does not involve formal education, work, home responsibilities, performance of other lifesustaining functions or engaging in activity directed from outside the individual. In other words it is largely discretionary time to be used as the child chooses. c) Play: Children’s play is any behaviour, activity or process initiated, controlled and structured by children themselves; it takes place whenever and wherever opportunities arise. Caregivers may contribute to the creation of environments in which play takes place, but play itself is non-compulsory, driven by intrinsic motivation and undertaken for its own sake, rather than as a means to an end. Play involves the exercise of autonomy, physical, mental or emotional activity, and has the potential to take infinite forms, either in groups or alone. These forms will change and be adapted throughout the course of childhood. The key characteristics of play are fun, uncertainty, challenge, flexibility and non-productivity. Together, these factors contribute to the enjoyment it produces and the consequent incentive to continue to play. While play is often considered non-essential, the Committee reaffirms that it is a fundamental and vital dimension of the pleasure of childhood, as well as an essential component of physical, social, cognitive, emotional and spiritual development. d) Recreational activities: Recreation is an umbrella term used to describe a very broad range of activities, including, inter alia, participation in music, art, crafts, community engagement, clubs, sports, games, hiking and camping, pursuing hobbies. It consists of activities or experiences, chosen voluntarily by the child, either because of the immediate satisfaction provided or because he or she perceives that some personal or social value will be gained by accomplishing them. Recreation often takes place in spaces specifically designed for it. While many recreational activities may be organized and managed by adults, recreation should be a voluntary activity. Compulsory or enforced games and sports or compulsory involvement in a youth organization, for example, do not constitute recreation. e) Appropriate to the age of the child: Article 31emphasizes the importance of activities appropriate to the age of the child. In respect of play and recreation, the age of the child must be taken into account in determining the amount of time afforded; the nature of spaces and environments available; forms of stimulation and diversity; the degree of necessary adult oversight and engagement to ensure safety and security. As children grow older, their needs and wants evolve from settings that afford play opportunities to places offering opportunities to socialize, be with peers or be alone. They will also explore progressively more opportunities involving risk-taking and challenge. These experiences are developmentally necessary for adolescents, and contribute to their discovery of identity and belonging.
232
f) Cultural life and the arts: The Committee endorses the view that it is through cultural life and the arts that children and their communities express their specific identity and the meaning they give to their existence, and build their world view representing their encounter with external forces affecting their lives.2 Cultural and artistic expression is articulated and enjoyed in the home, school, streets and public spaces, as well as through dance, festivals, crafts, ceremonies, rituals, theatre, literature, music, cinema, exhibitions, film, digital platforms and video. Culture derives from the community as a whole; no child should be denied access either to its creation or to its benefits. Cultural life emerges from within the culture and community, rather than imposed from above, with the role of States being to serve as facilitators not suppliers.3 g) Participate freely: The right of children to participate freely in cultural life and the arts requires that States parties respect and abstain from interfering in the child’s access to, choice of and engagement in such activities, subject to the obligation to ensure the protection of the child and the promotion of the child’s best interests. States parties must also ensure that others do not restrict that right. The child’s decision to exercise or not exercise this right is his or her choice and, as such, should be recognized, respected and protected.
B. ARTICLE 31, PARAGRAPH 2 15. States Parties shall respect and promote the right of the child: a) Participate fully in cultural and artistic life: The right to participate fully has three inter-related and mutually reinforcing dimensions: i) Access necessitates that children are provided the opportunities to experience cultural and artistic life and to learn about a wide range of different forms of expression; ii) Participation requires that concrete opportunities are guaranteed for children, individually or as a group, to express themselves freely, to communicate, act and engage in creative activities, with a view to the full development of their personalities; iii) Contribution to cultural life encompasses the right of children to contribute to the spiritual, material, intellectual and emotional expressions of culture and the arts, thereby furthering the development and transformation of the society to which he or she belongs. b) Encourage the provision of appropriate opportunities: Although the requirement to encourage the 2 Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009) on the right of everyone to take part in cultural life, para. 13. 3 See UNESCO, “Mexico City Declaration on Cultural Policies,” World Conference on Cultural Policies, Mexico City, 26 July - 6 August 1982.
BACK
KEYWORDS INDEX
U PV EDR A TED SION provision of appropriate opportunities specifies cultural, artistic, recreational and leisure activity, the Committee interprets it as including play also, further to article 4 of the Convention. States parties must therefore ensure the necessary and appropriate preconditions for participation to facilitate and promote opportunities for the realization of the rights under article 31. Children can only realize their rights if the necessary legislative, policy, budgetary, environmental and service frameworks are in place. c) Provision of equal opportunities: Every child must be afforded equal opportunities to enjoy his or her rights under article 31.
A RT I C LE 31
IN T H E B R O A DE R CONTE XT OF THE CO N VE N TI ON
A. LINKS WITH THE GENERAL PRINCIPLES OF THE CONVENTION 16. Article 2 (non-discrimination): The Committee emphasizes that States parties shall take all appropriate measures to ensure that all children have the opportunity to realize their rights under article 31 without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Particular attention should be given to addressing the rights of certain groups of children, including, inter alia, girls, children with disabilities, children living in poor or hazardous environments, children living in poverty, children in penal, health-care or residential institutions, children in situations of conflict or humanitarian disaster, children in rural communities, asylum-seeking and refugee children, children in street situations, nomadic groups, migrant or internally displaced children, children of indigenous origin and from minority groups, working children, children without parents and children subjected to significant pressure for academic attainment. 17. Article 3 (best interests of the child): The Committee emphasizes that the realization of the rights under article 31is, by definition, in the child’s best interests. The obligation to consider the child’s best interests applies to children as individuals and as a group or constituency. All legislative, policy and budgetary measures, as well as measures relating to environmental or service provision, which are likely to impact on the rights provided for in article 31 must take into consideration the best interests of children. This would apply, for example, to regulations relating to health and safety, solid waste disposal and collection, residential and transportation planning, design and accessibility of the urban landscape, provision of parks and other green spaces, determination of school hours, child labour and education legislation, planning applications or legislation governing privacy on the Internet, among others.
18. Article 6 (life, survival and development): State parties must ensure, to the maximum extent possible, the life, survival and development of the child. In this regard, the Committee draws attention to the need to recognize the positive value of each dimension of article 31 in promoting the development and evolving capacities of children. This also requires that the measures introduced to implement article 31 are in accordance with the developmental needs of children at all ages. States parties should promote awareness and understanding of the centrality of play for children’s development among parents, caregivers, government officials and all professionals working with and for children. 19. Article 12 (right to be heard): Children, as individuals and as a group, have the right to express their views on all matters of concern to them, which should be given due weight, in accordance with their age and maturity, and they should receive adequate support to express their views, where necessary. Children are entitled to exercise choice and autonomy in their play and recreational activities, as well as in their participation in cultural and artistic activities. The Committee underlines the importance of providing opportunities for children to contribute to the development of legislation, policies, strategies and design of services to ensure the implementation of the rights under article 31. Such contribution could include their involvement, for example, in consultations on policies related to play and recreation, on legislation affecting educational rights and school organization and curriculum or protective legislation relating to child labour, on the development of parks and other local facilities, on urban planning and design for child-friendly communities and environments, and their feedback could be sought on opportunities for play or recreation and cultural activities within the school and the wider community.4
B. LINKS WITH OTHER RELEVANT RIGHTS 20. Article 13: The right to freedom of expression is fundamental to the right to participate freely in cultural and artistic activity. Children have the right to express themselves in whatever way they choose, subject only to restrictions as defined by law and when necessary to ensure respect for the rights and reputations of others, and for the protection of national security, public order and public health or morals. 21. Article 15: Children have the right to exercise choice in their friendships, as well as membership of social, cultural, sporting and other forms of organization. Freedom of association represents an integral dimension of their rights under article 31, as children together create forms of imaginative play that are rarely achieved in adult-child relations. Children need to engage with peers of both sexes, as well as with people of different abilities, classes, cultures and ages, in order to learn cooperation, tolerance, sharing and resourcefulness. Play and recreation create 4 See the Committee’s general comment No.12 (2009) on the right of the child to be heard.
BI A CK N D E X
233
U PV EDR A TED SION the opportunities for the formation of friendships and can play a key role in strengthening civil society, contributing towards the social, moral and emotional development of the child, shaping culture and building communities. State parties must facilitate opportunities to enable children to meet freely with their peers at the community level. They must also respect and support the right of children to establish, join and leave associations, and the right to peaceful assembly. However, children should never be compelled to participate or join organizations. 22. Article 17: Children are entitled to information and materials which are of social and cultural benefit and which derive from a diversity of community, national and international sources. Access to such information and materials is essential for their realization of the right to participate fully in cultural and artistic activity. States parties are encouraged to ensure that children are provided with the widest possible access, through different media, to information and materials related to their own culture and to other cultures, in a language that they understand, including sign language and Braille, and by permitting exceptions to copyright laws in order to ensure the availability of printed materials in alternative formats. In so doing, care must be taken to protect and preserve cultural diversity and to avoid cultural stereotypes. 23. Article 22: Refugee and asylum-seeking children face profound challenges in realizing their rights under article 31 as they often experience both dislocation from their own traditions and culture and exclusion from the culture of the host country. Efforts must be made to ensure that refugee and asylum-seeking children have equal opportunities with children from the host country to enjoy the rights provided for in article 31. Recognition must also be afforded to the right of refugee children to preserve and practice their own recreational, cultural and artistic traditions. 24. Article 23: Accessible and inclusive environments and facilities must be made available5 to children with disabilities to enable them to enjoy their rights under article 31. Families, caregivers and professionals must recognize the value of inclusive play, both as a right and as a means of achieving optimum development, for children with disabilities. States parties should promote opportunities for children with disabilities, as equal and active participants in play, recreation and cultural and artistic life, by awareness-raising among adults and peers, and by providing age-appropriate support or assistance. 25. Article 24: Not only does the realization of the rights provided for in article 31 contribute to the health, wellbeing and development of children, but also appropriate provision for children to enjoy the rights under article 31 when they are ill and/or hospitalized will play an important role in facilitating their recovery. 26. Article 27: Inadequate standard of living, insecure or overcrowded conditions, unsafe and unsanitary environments, inadequate food, enforced harmful or exploitative work can all serve to limit or deny children the opportunity to enjoy their rights under article 31. States parties are encouraged to take into account the implications 5 See Convention on the Rights of Persons with Disabilities, arts. 7, 9 and 30. 234
for children’s rights under article 31 when developing policies relating to social protection, employment, housing and access to public spaces for children, especially those living without opportunities for play and recreation in their own homes. 27. Articles 28 and 29: Education must be directed to the development of the child’s personality, talents and mental and physical abilities to the fullest potential. Implementation of the rights under article 31 is essential to achieving compliance with the right provided for in article 29. For children to optimize their potential, they require opportunities for cultural and artistic development as well as participation in sports and games. The Committee also emphasizes that the rights under article 31 are of positive benefit to children’s educational development; inclusive education and inclusive play are mutually reinforcing and should be facilitated during the course of every day throughout early childhood education and care (preschool) as well as primary and secondary school. While relevant and necessary for children of all ages, play is particularly significant in the early years of schooling. Research has shown that play is an important means through which children learn. 28. Article 30: Children from ethnic, religious or linguistic minorities should be encouraged to enjoy and participate in their own cultures. States should respect the cultural specificities of children from minority communities as well as children of indigenous origin, and ensure that they are afforded equal rights with children from majority communities to participate in cultural and artistic activities reflecting their own language, religion and culture. 29. Article 32: The Committee notes that in many countries, children are engaged in arduous work which denies them their rights under article 31. Furthermore, millions of children are working as domestic workers or in non-hazardous occupations with their families without adequate rest or education, throughout most of their childhood. States need to take all necessary measures to protect all child workers from conditions that violate their rights under article 31. 30. Articles 19, 34, 37 and 38: Violence, sexual exploitation, deprivation of liberty by unlawful or arbitrary means and forced service in armed conflicts impose conditions that seriously impede or even eliminate children’s abilities to enjoy play, recreation and participation in cultural life and the arts. Bullying by other children can also be a major impediment to the enjoyment of the rights under article 31. Those rights can only be realized if States parties take all necessary measures to protect children from such acts. 31. Article 39: States parties should ensure that children who have experienced neglect, exploitation, abuse or other forms of violence are provided with support for recovery and reintegration. Children’s experiences, including those which are painful and damaging, can be communicated through play or artistic expression. Opportunities to realize the rights under article 31 can provide a valuable means through which children can externalize traumatic or difficult life experiences in order to make sense of their past and better cope with their future. Play and artistic
BACK
KEYWORDS INDEX
expression would enable them to communicate, better understand their own feelings and thoughts, prevent or resolve psychosocial challenges and learn to manage relationships and conflicts through a natural, self-guided, self-healing process.
- Opportunities to participate with other children in games, sports and other recreational activities, supported, where necessary, by trained facilitators or coaches;
C R EA TI NG
B. CHALLENGES TO BE ADDRESSED IN THE REALIZATION OF ARTICLE 31
T HE C O N TE X T F OR TH E R EA LI Z A T I ON OF ARTI CL E 3 1
A. FACTORS FOR AN OPTIMUM ENVIRONMENT 32. Children have a spontaneous urge to play and participate in recreational activities and will seek out opportunities to do so in the most unfavourable environments. However, certain conditions need to be assured, in accordance with children’s evolving capacities, if they are to realize their rights under article 31 to the optimum extent. As such, children should have: - Freedom from stress; - Freedom from social exclusion, prejudice or discrimination; - An environment secure from social harm or violence; - An environment sufficiently free from waste, pollution, traffic and other physical hazards to allow them to circulate freely and safely within their local neighbourhood; - Availability of rest appropriate to their age and development; - Availability of leisure time, free from other demands; - Accessible space and time for play, free from adult control and management; - Space and opportunities to play outdoors unaccompanied in a diverse and challenging physical environment, with easy access to supportive adults, when necessary; - Opportunities to experience, interact with and play in natural environments and the animal world; - Opportunities to invest in their own space and time so as to create and transform their world, using their imagination and languages; - Opportunities to explore and understand the cultural and artistic heritage of their community, participate in, create and shape it;
- Recognition by parents, teachers and society as a whole of the value and legitimacy of the rights provided for in article 31.
33. Lack of recognition of the importance of play and recreation: In many parts of the world, play is perceived as “deficit” time spent in frivolous or unproductive activity of no intrinsic worth. Parents, caregivers and public administrators commonly place a higher priority on studying or economic work than on play, which is often considered noisy, dirty, disruptive and intrusive. Moreover, adults often lack the confidence, skill or understanding to support children’s play and to interact with them in a playful way. Both the right of children to engage in play and recreation and their fundamental importance of those activities for children’s well-being, health and development are poorly understood and undervalued. When play is recognized, it is usually physically active play and competitive games(sport) that are valued above fantasy or social drama, for example. The Committee emphasizes that greater recognition of the forms and locations of play and recreation preferred by older children is particularly necessary. Adolescents often seek places to meet with their peers and explore their emerging independence and transition to adulthood. This is an important dimension for the development of their sense of identity and belonging. 34. Unsafe and hazardous environments: Features in the environment which impact on the rights provided for in article 31 can either serve as protective or risk factors for children’s health, development and safety. In respect of younger children, spaces which provide opportunities for exploration and creativity should enable parents and caregivers to maintain oversight, including by means of eye and voice contact. Children need access to inclusive spaces that are free from inappropriate hazards and close to their own homes, as well as with measures to promote safe, independent mobility as their capacities evolve. 35. The majority of the world’s poorest children face physical hazards such as polluted water; open sewer systems; overcrowded cities; uncontrolled traffic; poor street lighting and congested streets; inadequate public transport; lack of safe local play areas, green spaces and cultural facilities; informal urban “slum” settlements in hazardous, violent or toxic environments. In post-conflict environments, children can also be harmed by landmines and unexploded ordnance. Indeed, children are at particular risk both because their natural curiosity and exploratory
U PV EDR A TED SION play increases the likelihood of exposure and because the impact of an explosion is greater on a child. 36. Human factors can also combine to place children at risk in the public environment: high levels of crime and violence; community unrest and civil strife; drug and gangrelated violence; risk of kidnapping and child trafficking; open spaces dominated by hostile youth or adults; aggression and sexual violence towards girls. Even where parks, playgrounds, sports facilities and other provisions exist, they may often be in locations where children are at risk, unsupervised and exposed to hazards. The dangers posed by all these factors severely restrict children’s opportunities for safe play and recreation. The increasing erosion of many spaces traditionally available to children creates a need for greater Government intervention to protect the rights under article 31. 37. Resistance to children’s use of public spaces: Children’s use of public space for play, recreation and their own cultural activities is also impeded by the increasing commercialization of public areas, from which children are excluded. Furthermore, in many parts of the world, there is decreasing tolerance of children in public spaces. The introduction, for example, of curfews on children; gated communities or parks; reduced noise-level tolerance; playgrounds with strict rules for “acceptable” play behaviour; restrictions on access to shopping malls builds a perception of children as “problems” and/or delinquents. Adolescents, in particular, are widely perceived as a threat by widespread negative media coverage and representation, and discouraged from using public spaces. 38. The exclusion of children has significant implications for their development as citizens. Shared experience of inclusive public spaces by different age groups serves to promote and strengthen civil society and encourage children to recognize themselves as citizens with rights. States are encouraged to promote dialogue between older and younger generations to encourage greater recognition of children as rights holders, and of the importance of networks of diverse community spaces in local areas or municipalities which can accommodate the play and recreational needs of all children. 39. Balancing risk and safety: Fears over the physical and human risks to which children are exposed within their local environments are leading, in some parts of the world, to increasing levels of monitoring and surveillance, with consequent constraints on their freedom to play and opportunities for recreation. In addition, children themselves can pose a threat to other children in their play and recreational activities – for example, bullying, abuse of younger children by older children and group pressure to engage in high risk-taking. While children must not be exposed to harm in the realization of their rights under article 31, some degree of risk and challenge is integral to play and recreational activities and is a necessary component of the benefits of these activities. A balance is needed between, on the one hand, taking action to reduce unacceptable hazards in children’s environment, such as closing local streets to traffic, improving street lighting or creating safe boundaries for school playgrounds, and on the other hand, informing, equipping and empowering 236
children to take the necessary precautions to enhance their own safety. The best interests of the child and listening to children’s experiences and concerns should be mediating principles for determining the level of risk to which children can be exposed. 40. Lack of access to nature: Children come to understand, appreciate and care for the natural world through exposure, self-directed play and exploration with adults who communicate its wonder and significance. Memories of childhood play and leisure in nature strengthen resources with which to cope with stress, inspire a sense of spiritual wonder and encourage stewardship for the earth. Play in natural settings also contributes towards agility, balance, creativity, social cooperation and concentration. Connection to nature through gardening, harvesting, ceremonies and peaceful contemplation is an important dimension of the arts and heritage of many cultures. In an increasingly urbanized and privatized world, children’s access to parks, gardens, forests, beaches and other natural areas is being erodedm, and children in low-income urban areas are most likely to lack adequate access to green spaces. 41. Pressure for educational achievement: Many children in many parts of the world are being denied their rights under article 31 as a consequence of an emphasis on formal academic success. For example: - Early childhood education is increasingly focused on academic targets and formal learning at the expense of participation in play and attainment of broader development outcomes; - Extracurricular tuition and homework are intruding on children’s time for freely chosen activities; - The curriculum and daily schedule often lack recognition of the necessity of or provision for play, recreation and rest; - The use of formal or didactic educational methods in the classroom do not take advantage of opportunities for active playful learning; - Contact with nature is decreasing in many schools with children having to spend more time indoors; - Opportunities for cultural and artistic activities and the provision of specialist arts educators in school are, in some countries, being eroded in favour of more academic subjects. - Restrictions on the type of play in which children can engage in school serve to inhibit their opportunities for creativity, exploration and social development. 42. Overly structured and programmed schedules: For many children, the ability to realize the rights provided for in article 31 is restricted by the imposition of adultdecided activities, including, for example, compulsory sports, rehabilitative activities for children with disabilities or domestic chores, particularly for girls, which allow little or no time for self-directed activities. Where Government investment exists, it tends to focus on organized competitive recreation, or sometimes children are required
BACK
KEYWORDS INDEX
U PV EDR A TED SION
or pressured to participate in youth organizations not of their own choosing. Children are entitled to time that is not determined or controlled by adults, as well as time in which they are free of any demands – basically to do “nothing, if they so desire. Indeed, the absence of activity can serve as a stimulus to creativity. Narrowly focusing all of a child’s leisure time into programmed or competitive activities can be damaging to his or her physical, emotional, cognitive and social well-being.6 43. Neglect of article 31 in development programmes: Early childhood care and development work in many countries focuses exclusively on issues of child survival with no attention paid to the conditions that enable children to thrive. Programmes often only deal with nutrition, immunization and preschool education with little or no emphasis on play, recreation, culture and the arts. The personnel running the programmes are not appropriately trained to support these aspects of the child’s development needs. 44. Lack of investment in cultural and artistic opportunities for children: Children’s access to cultural and artistic activities are often restricted by a range of factors, including lack of parental support; cost of access; lack of transport; the adult-centred focus of many exhibitions, plays and events; failure to engage children in the content, design, location and forms of provision. Greater emphasis is needed in the creation of spaces to stimulate creativity. Operators of arts and cultural venues should look beyond their physical spaces to consider how their programmes reflect and respond to the cultural lives of the community they represent. Children’s participation in the arts requires a more child-centred approach which commissions and displays children’s creations and also engages them in the structure and programmes offered. Such engagement during childhood can serve to stimulate cultural interests for life. 45. Growing role of electronic media: Children in all regions of the world are spending increasing periods of time engaged in play, recreational, cultural and artistic activities, both as consumers and creators, via various digital platforms and media, including watching television, messaging, social networking, gaming, texting, listening to and creating music, watching and making videos and films, creating new art forms, posting images. Information and communication technologies are emerging as a central dimension of children’s daily reality. Today, children move seamlessly between offline and online environments. These platforms offer huge benefits – educationally, socially and culturally – and States are encouraged to take all necessary measures to ensure equality of opportunity for all children to experience those benefits. Access to the Internet and social media is central to the realization of article 31 rights in the globalized environment. 46. However, the Committee is concerned at the growing body of evidence indicating the extent to which these 6 Marta Santos Pais, “The Convention on the Rights of the Child,” in OHCHR, Manual on Human Rights Reporting (Geneva, 1997), pp. 393 to 505.
environments, as well as the amounts of time children spend interacting with them, can also contribute to significant potential risk and harm to children.7 For example: - Access to the Internet and social media is exposing children to cyberbullying, pornography and cybergrooming. Many children attend Internet cafes, computer clubs and game halls with no adequate restrictions to access or effective monitoring systems; - The increasing levels of participation, particularly among boys, in violent video games appears to be linked to aggressive behaviour as the games are highly engaging and interactive and reward violent behaviour. As they tend to be played repeatedly, negative learning is strengthened and can contribute to reduced sensitivity to the pain and suffering of others as well as aggressive or harmful behaviour toward others. The growing opportunities for online gaming, where children may be exposed to a global network of users without filters or protections, are also a cause for concern. - Much of the media, particularly mainstream television, fail to reflect the language, cultural values and creativity of the diversity of cultures that exist across society. Not only does such monocultural viewing limit opportunities for all children to benefit from the potential breadth of cultural activity available, but it can also serve to affirm a lower value on non-mainstream cultures. Television is also contributing to the loss of many childhood games, songs, rhymes traditionally transmitted from generation to generation on the street and in the playground; - Growing dependence on screen-related activities is thought to be associated with reduced levels of physical activity among children, poor sleep patterns, growing levels of obesity and other related illnesses. 47. Marketing and commercialization of play: The Committee is concerned that many children and their families are exposed to increasing levels of unregulated commercialization and marketing by toy and game manufacturers. Parents are pressured to purchase a growing number of products which may be harmful to their children’s development or are antithetical to creative play, such as products that promote television programmes with established characters and storylines which impede imaginative exploration; toys with microchips which render the child as a passive observer; kits with a pre-determined pattern of activity; toys that promote traditional gender stereotypes or early sexualization of girls; toys containing dangerous parts or chemicals; realistic war toys and games. Global marketing can also serve to weaken children’s participation in the traditional cultural and artistic life of their community. 7 UNICEF, Child Safety Online: Global Challenges and Strategies. Technical report (Florence, Innocenti Research Centre, 2012).
BI A CK N D E X
237
U PV EDR A TED SION
CHILDREN REQUIRING
PARTICULAR ATTENTION TO REALIZE THEIR RIGHTS UNDER ARTICLE 31 48. Girls: A combination of significant burdens of domestic responsibilities and sibling and family care, protective concerns on the part of parents, lack of appropriate facilities and cultural assumptions imposing limitations on the expectations and behaviour of girls can serve to diminish their opportunities to enjoy the rights provided for in article 31, particularly in the adolescent years. In addition, gender differentiation in what is considered girls’ and boys’ play and which is widely reinforced by parents, caregivers, the media and producers/manufacturers of games and toys serve to maintain traditional gender-role divisions in society. Evidence indicates that whereas boys’ games prepare them for successful performance in a wide range of professional and other settings in modern society, girls’ games, in contrast, tend to direct them towards the private sphere of the home and future roles as wives and mothers. Adolescent boys and girls are often discouraged from engaging in joint recreational activities. Furthermore, girls generally have lower participation rates in physical activities and organized games as a consequence of either external cultural or self-imposed exclusion or lack of appropriate provision. This pattern is of concern in the light of the proven physical, psychological, social and intellectual benefits associated with participation in sports activities.8 Given these widespread and pervasive barriers impeding girls’ realization of their rights under article 31, the Committee urges States parties to take action to challenge gender stereotypes which serve to compound and reinforce patterns of discrimination and inequality of opportunity. 49. Children living in poverty: Lack of access to facilities, inability to afford the costs of participation, dangerous and neglected neighbourhoods, the necessity to work and a sense of powerlessness and marginalization all serve to exclude the poorest children from realizing the rights provided for in article 31. For many, the risks to their health and safety outside the home are compounded by home environments which provide no or little space or scope for play or recreation. Children without parents are particularly vulnerable to loss of their rights under article 31; children in street situations are not afforded play provisions, and are commonly actively excluded from city parks and playgrounds, although they use their own creativity to utilize the informal setting of the streets for play opportunities. Municipal authorities must recognize the importance of parks and playgrounds for the realization of the rights provided for under article 31 by children living in poverty and engage in dialogue with them in respect of policing, planning and development initiatives. States need to take action to ensure both access to and opportunities for cultural and artistic activities for all children, as well as equal opportunities for play and recreation.
238
social arenas where friendships are formed and where play and recreation take place; isolation at the home; cultural attitudes and negative stereotypes which are hostile to and rejecting of children with disabilities; physical inaccessibility of, inter alia, public spaces, parks, playgrounds and equipment, cinemas, theatres, concert halls, sports facilities and arenas; policies that exclude them from sporting or cultural venues on the grounds of safety; communication barriers and failure to provide interpretation and adaptive technology; lack of accessible transport. Children with disabilities can also be hindered in the enjoyment of their rights if investment is not made to render radio, television, computers and tablets accessible, including through the use of assistive technologies. In this regard, the Committee welcomes article 30 of the Convention on the Rights of Persons with Disabilities which emphasizes the obligations of States parties to ensure that children with disabilities have equal access with other children to participation in play, recreation, sporting and leisure activities, including in the mainstream school system. Pro-active measures are needed to remove barriers and promote accessibility to and availability of inclusive opportunities for children with disabilities to participate in all these activities.9 51. Children in institutions: Many children spend all or part of their childhood in institutions, including, inter alia, residential homes and schools, hospitals, detention centres, remand homes and refugee centres, where opportunities for play, recreation and participation in cultural and artistic life may be limited or denied. The Committee stresses the need for States to work towards the de-institutionalization of children; but until that goal is reached, States should adopt measures to ensure that all such institutions guarantee both spaces and opportunities for children to associate with their peers in the community, to play and to participate in games, physical exercise, cultural and artistic life. Such measures should not be restricted to compulsory or organized activities; safe and stimulating environments are needed for children to engage in free play and recreation. Wherever possible, children should be afforded these opportunities within local communities. Children living in institutions for significant periods of time also require appropriate literature, periodicals and access to the Internet, as well as support to enable them to make use of such resources. Availability of time, appropriate space, adequate resources and equipment, trained and motivated staff and provision of dedicated budgets are needed to create the necessary environments to ensure that every child living in an institution can realize his or her rights under article 31.
50. Children with disabilities: Multiple barriers impede access by children with disabilities to the rights provided for in article 31, including exclusion from school; informal and
52. Children from indigenous and minority communities: Ethnic, religious, racial or caste discrimination can serve to exclude children from realizing their rights under article 31. Hostility, assimilation policies, rejection, violence and discrimination may result in barriers to enjoyment by indigenous and minority children of their own cultural practices, rituals and celebrations, as well as to their participation in sports, games, cultural activities, play and recreation alongside other children. States have an obligation to recognize, protect and respect the right of minority groups to take part in the cultural and recreational life of the society in which they live, as well
8 UNESCO, International Charter of Physical Education and Sport, 1978.
9 General comment No. 9 (2006) on the rights of children with disabilities.
BACK
KEYWORDS INDEX
U PV EDR A TED SION as to conserve, promote and develop their own culture.10 However, children from indigenous communities also have the right to experience and explore cultures beyond the boundaries of their own family traditions. Cultural and artistic programmes must be based on inclusion, participation and non-discrimination. 53. Children in situations of conflict, humanitarian and natural disasters: The rights provided for in article 31 are often given lower priority in situations of conflict or disaster than the provision of food, shelter and medicines. However, in these situations, opportunities for play, recreation and cultural activity can play a significant therapeutic and rehabilitative role in helping children recover a sense of normality and joy after their experience of loss, dislocation and trauma. Play, music, poetry or drama can help refugee children and children who have experienced bereavement, violence, abuse or exploitation, for example, to overcome emotional pain and regain control over their lives. Such activities can restore a sense of identity, help them make meaning of what has happened to them, and enable them experience fun and enjoyment. Participation in cultural or artistic activities, as well as in play and recreation, offers children an opportunity to engage in a shared experience, to re-build a sense of personal value and self-worth, to explore their own creativity and to achieve a sense of connectedness and belonging. Settings for play also provide opportunities for monitors to identify children suffering from the harmful impact of conflict.
STATES PARTIES’
OBLIGATIONS
54. Article 31 imposes three obligations on States parties to guarantee that the rights it covers are realized by every child without discrimination: a) The obligation to respect requires States parties to refrain from interfering, directly or indirectly, in the enjoyment of the rights provided for in article 31; b) The obligation to protect requires States parties to take steps to prevent third parties from interfering in the rights under article 31; c) The obligation to fulfil requires States parties to introduce the necessary legislative, administrative, judicial, budgetary, promotional and other measures aimed at facilitating the full enjoyment of the rights provided for in article 31 by undertaking action to make available all necessary services, provision and opportunities. 55. While the International Covenant on Economic, Social and Cultural Rights provides for the progressive realization of economic, social and cultural rights and recognizes the problems arising from limited resources, it imposes on States parties the specific and continuing obligation, even where resources are inadequate, to “strive to ensure the widest possible enjoyment of the relevant 10 United Nations Declaration on the Rights of Indigenous Peoples (General Assembly resolution 61/295, annex).
rights under the prevailing circumstances”11. As such, no regressive measures in relation to the rights under article 31 are permitted. Should any such deliberate measure be taken, the State would have to prove that it has carefully considered all the alternatives, including giving due weight to children’s expressed views on the issue, and that the decision was justified, bearing in mind all other rights provided for in the Convention. 56. The obligation to respect includes the adoption of specific measures aimed at achieving respect for the right of every child, individually or in association with others, to realise his or her rights under article 31, including: a) Support for caregivers: Guidance, support and facilitation with regard to the rights under article 31should be provided to parents and caregivers in line with article 18, paragraph 2, of the Convention. Such support could be in the form of practical guidance, for example, on how to listen to children while playing; create environments that facilitate children’s play; allow children to play freely and play with children. It could also address the importance of encouraging creativity and dexterity; balancing safety and discovery; the developmental value of play and guided exposure to cultural, artistic and recreational activities. b) Awareness raising: States should invest in measures to challenge widespread cultural attitudes which attach low value to the rights provided for in article 31, including: - Public awareness of both the right to and the significance of play, recreation, rest, leisure and participation in cultural and artistic activities for both boys and girls of all ages in contributing to the enjoyment of childhood, promoting the optimum development of the child and building positive learning environments; - Measures to challenge the pervasive negative attitudes, particularly towards adolescents, which lead to restrictions on the opportunities for the enjoyment of their rights under article 31. In particular, opportunities should be created for children to represent themselves in the media. 57. The obligation to protect requires that States parties take action to prevent third parties from interfering in or restricting the rights provided for in article 31. Accordingly, States are obliged to ensure: a) Non-discrimination: Legislation is required to guarantee access for every child, without discrimination on any ground, to all recreational, cultural and artistic environments, including public and private spaces, natural spaces, parks, playgrounds, sporting venues, museums, cinemas, libraries, theatres, as well as to cultural activities, services and events; b) Regulation of non-State actors: Legislation, regulations and guidelines should be introduced, together with the necessary budgetary allocation and effective mechanisms for monitoring and enforcement, to ensure that all members of civil society, including the corporate sector, comply with the provisions of article 31, including, inter alia: - Employment protection for all children to guarantee appropriate limitations on the nature, hours and days of 11 Committee on Economic, Social and Cultural Rights, general comment No. 3 (1990) on the nature of States parties obligations, para. 11.
BI A CK N D E X
239
U PV EDR A TED SION work, rest periods and facilities for recreation and rest, consistent with their evolving capacities. States are also encouraged to ratify and implement ILO conventions Nos. 79, 90, 138 and 182;12 - Establishment of safety and accessibility standards for all play and recreational facilities, toys and games equipment; - Obligations to incorporate provision and opportunity for the realization of the rights under article 31 in urban and rural development proposals; - Protection from cultural, artistic or recreational material which might be injurious to children’s well-being, including protection and classification systems governing media broadcasting and film, taking into account the provisions of both article 13 on freedom of expression and article 18 on the responsibilities of parents; - Introduction of regulations prohibiting the production of realistic war games and toys for children; c) Protection of children from harm: Child protection policies, procedures, professional ethics, codes and standards for all professionals working with children in the field of play, recreation, sports, culture and the arts must be introduced and enforced. Recognition must also be given to the need to protect children from potential harm that may be imposed by other children in the exercise of their rights under article 31;13 d) Online safety: Measures should be introduced to promote online access and accessibility, as well as safety for children. These should include action to empower and inform children to enable them to act safely online, to become confident and responsible citizens of digital environments and to report abuse or inappropriate activity when it is encountered. Measures are also needed to reduce impunity of abusive adults through legislation and international collaboration; limit access to harmful or adultrated material and gaming networks; improve information for parents, teachers and policymakers to raise awareness of the potential harm associated with violent games and develop strategies for promoting safer and attractive options for children; e) Post-conflict safety: Active measures should be taken to restore and protect the righhts under article 31in post-conflict and disaster situations, including, inter alia: - Encouraging play and creative expression to promote resilience and psychological healing; - Creating or restoring safe spaces, including schools, where children can participate in play and recreation as part of the normalization of their lives; - In areas where landmines pose a threat to the safety of children, investment must be made to ensure the complete clearing of landmines and cluster-bombs from all affected areas14; f) Marketing and media: Action should be initiated to: - Review policies concerning the commercialization of 12 ILO conventions No. 79 - Night Work of Young Persons (Non-Industrial Occupations); No. 90 - Night Work of Young Persons (Industry); No. 138 Minimum Age Convention; No. 182 - Worst Forms of Child Labour Convention. 13 General comment No. 13 (2011) on the right of the child to freedom from all forms of violence. 14 Protocol on Explosive Remnants of War (Protocol V to the Convention on Certain Conventional Weapons). 240
toys and games to children, including through children’s television programmes and directly related advertisements, with particular regard to those promoting violence, girls or boys in a sexual way and reinforcing gender and disability stereotypes; - Limit exposure to advertising during peak viewing hours for children; g) Complaint mechanisms: Independent, effective, safe and accessible mechanisms must be in place for children to make complaints and seek redress if their rights under article 31 are violated15. Children need to know who they can complain to and how (what procedure) to do so. State are encouraged to sign and ratify the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPIC), which will allow individual children to submit complaints of violations. 58. The obligation to fulfil requires that States parties adopt a wide range of measures to ensure the fulfilment of all the rights provided for under article 31. In accordance with article 12 of the Convention, all such measures, both at the national and local levels, and including planning, design, development, implementation and monitoring should be developed in collaboration with children themselves, as well as NGOs and community-based organizations, through, for example, children’s clubs and associations, community arts and sports groups, representative organizations of children and adults with disabilities, representatives from minority communities and play organisations16. In particular, consideration should be given to the following: a) Legislation and planning: The Committee strongly encourages States to consider introducing legislation to ensure the rights under article 31 for every child, together with a timetable for implementation. Such legislation should address the principle of sufficiency – all children should be given sufficient time and space to exercise these rights. Consideration should also be given to the development of a dedicated plan, policy or framework for article 31 or to its incorporation into an overall national plan of action for the implementation of the Convention. Such a plan should address the implications of article 31 for boys and girls of all age groups, as well as children in marginalized groups and communities; it should also recognize that creating time and space for children’s selfdirected activity is as important as the provision of facilities and opportunities for organized activities; b) Data collection and research: Indicators for compliance, as well as mechanisms for monitoring and evaluating implementation need to be developed in order to ensure accountability to children in the fulfilment of obligations under article 31. States need to collect population-based data, disaggregated by age, sex, ethnicity and disability, to gain an understanding of the extent and nature of children’s engagement in play, recreation and cultural and artistic life. Such information should inform planning processes, and provide the basis for measuring progress in implementation. Research is also needed into the daily lives of children and their caregivers and the impact of housing and neighbourhood conditions in 15 General comment No. 2 (2002) on te role of independent national human rights institutions in the promotion and protection of the rights of the child. 16 General comment No. 12 (2009) on the right of the child to be heard.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
order to understand how they use local environments; the barriers they encounter in enjoying the rights under article 31; the approaches they adopt to surmount those barriers and the action needed to achieve greater realization of those rights. Such research must actively involve children themselves, including children from the most marginalized communities; c) Cross departmental collaboration in national and municipal government: Planning for play, recreation and cultural and artistic activities requires a broad and comprehensive approach involving cross-departmental collaboration and accountability between national, regional and municipal authorities. Relevant departments include not only those dealing directly with children, such as health, education, social services, child protection, culture, recreation and sports, but also those concerned with water and sanitation, housing, parks, transport, environment and city planning, all of which impact significantly on the creation of environments in which children can realize their rights under article 31; d) Budgets: Budgets should be reviewed to ensure that the allocation for children, in respect of cultural, artistic, sports, recreational and play activities, is inclusive and consistent with their representation as a proportion of the population as a whole, and distributed across the provision for children of all ages, for example: budgetary support for the production and dissemination of children’s books, magazines and papers; various formal and non-formal artistic expressions for children; accessible equipment and buildings and public spaces; resources for facilities such as sports clubs or youth centres. Consideration should be given to the cost of measures required to ensure access for the most marginalized children, including the obligation to provide reasonable accommodation to ensure equality of access for children with disabilities; e) Universal design17: Investment in universal design is necessary with regard to play, recreational, cultural, arts and sports facilities, buildings, equipment and services, consistent with the obligations to promote inclusion and protect children with disabilities from discrimination. States should engage with non-State actors to ensure the implementation of universal design in the planning and production of all materials and venues, for example, accessible entrances to be used by wheelchair users and inclusive design for play environments, including those in schools; f) Municipal planning: Local municipalities should assess provision of play and recreation facilities to guarantee equality of access by all groups of children, including through child-impact assessments. Consistent with the obligations under article 31, public planning must place a priority on the creation of environments which promote the well-being of the child. In order to achieve 17 The term “universal design” was coined by Ronald Mace to describe the concept of designing all products and the built environment to be aesthetic and usable to the greatest extent possible by everyone, regardless of their age, ability or status in life; see also art. 4, para. 1 (f) of the Convention on the Rights of Persons with Disabilities.
the necessary child-friendly urban and rural environments, consideration should be given to, inter alia: - Availability of inclusive parks, community centres, sports and playgrounds that are safe and accessible to all children; - Creation of a safe living environment for free play, including design of zones in which players, pedestrians and bikers have priority; - Public safety measures to protect areas for play and recreation from individuals or groups who threaten children’s safety; - Provision of access to landscaped green areas, large open spaces and nature for play and recreation, with safe, affordable and accessible transport; - Road traffic measures, including speed limits, levels of pollution, school crossings, traffic lights, and calming measures to ensure the rights of children to play safely within their local communities; - Provision of clubs, sports facilities, organized games and activities for both girls and boys of all ages and from all communities; - Dedicated and affordable cultural activities for children of all ages and from all communities, including theatre, dance, music, art exhibitions, libraries and cinema. Such provision should comprise opportunities for children to produce and create their own cultural forms as well as exposure to activities produced by adults for children; - Review of all cultural policies, programmes and institutions to ensure their accessibility and relevance for all children and to ensure that they take into account the needs and aspirations of children and support their emerging cultural practices; g) Schools: Educational environments should play a major role in fulfilling the obligations under article 31, including: - Physical environment of settings: States parties should aim to ensure the provision of adequate indoor and outdoor space to facilitate play, sports, games and drama, during and around school hours; active promotion of equal opportunities for both girls and boys to play; adequate sanitation facilities for boys and girls; playgrounds, play landscapes and equipment that are safe and properly and regularly inspected; playgrounds with appropriate
BI A CK N D E X
241
U PV EDR A TED SION
DISSEMINATION boundaries; equipment and spaces designed to enable all children, including children with disabilities, to participate equally; play areas which afford opportunities for all forms of play; location and design of play areas with adequate protection and with the involvement of children in the design and development; - Structure of the day: Statutory provision, including homework, should guarantee appropriate time during the day to ensure that children have sufficient opportunity for rest and play, in accordance with their age and developmental needs; - School curriculum: Consistent with obligations under article 29 concerning the aims of education, appropriate time and expertise must be allocated within the school curriculum for children to learn, participate in and generate cultural and artistic activities, including music, drama, literature, poetry and art, as well as sports and games;18
60. The Committee recommends that States parties disseminate this general comment widely within Government and administrative structures, to parents, other caregivers, children, professional organizations, communities and civil society at large. All channels of dissemination, including print media, the Internet and children’s own communication means should be used. This will necessitate translation into relevant languages, including sign languages, Braille and easy-to-read formats for children with disabilities. It also requires making culturally appropriate and child-friendly versions available. 61. States parties are also encouraged to report fully to the Committee on the Rights of the Child on the measures they have adopted to encourage the full implementation of article 31 for all children.
- Educational pedagogy: Learning environments should be active and participatory and offer, especially in the early years, playful activities and forms of engagement; h) Training and capacity-building: All professionals working with or for children, or whose work impacts on children (Government officials, educators, health professionals, social workers, early years and care workers, planners and architects, etc.), should receive systematic and ongoing training on the human rights of children, including the rights embodied in article 31. Such training should include guidance on how to create and sustain environments in which the rights under article 31 can be most effectively realized by all children. 59. International cooperation: The Committee encourages international cooperation in the realization of the rights provided for in article 31 through the active engagement of United Nations agencies including UNICEF, UNESCO, UNHCR, UN Habitat, UNOSDP, UNDP, UNEP and WHO, as well as international, national and local NGOs. 18 General comment No. 1 (2001) on the aims of education. 242
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
243
number 18
U PV EDR A TED SION
IN T R O DUC T I ON 1. The Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child contain legally binding obligations that relate both in general and specifically to the elimination of harmful practices. The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child have consistently drawn attention to those practices affecting women and children, primarily girls, in the execution of their monitoring mandates. It is by virtue of that overlapping mandate and the shared commitment to prevent, respond to and eliminate harmful practices, wherever and in whichever form they occur, that the Committees decided to develop the present joint general recommendation/general comment.
O B JEC T I VE
AND SCOPE OF THE JOINT GENERAL RECOMMENDATION/ GENERAL COMMENT 2. The objective of the present joint general recommendation/general comment is to clarify the obligations of States parties to the Conventions by providing authoritative guidance on legislative, policy and other appropriate measures that must be taken to ensure full compliance with their obligations under the Conventions to eliminate harmful practices. 3. The Committees acknowledge that harmful practices affect adult women, both directly and/or owing to the longterm impact of practices to which they were subjected as girls. The present joint general recommendation/general comment therefore further elaborates on the obligations of States parties to the Convention on the Elimination of All Forms of Discrimination against Women with regard to the relevant provisions for the elimination of harmful practices that affect the rights of women. 4. Moreover, the Committees recognize that boys are also the victims of violence, harmful practices and bias and that their rights must be addressed for their protection and to prevent gender-based violence and the perpetuation of bias and gender inequality later in their lives. Accordingly, reference is made herein to the obligations of States parties to the Convention on the Rights of the Child regarding harmful practices stemming from discrimination that affect boys’ enjoyment of their rights. 5. The present joint general recommendation/general comment should be read in conjunction with the relevant general recommendations and general comments issued by the Committees, in particular general recommendation No. 19 on violence against women, of the Committee on the Elimination of Discrimination against Women, and general comment No. 8 on the right of the child to 246
protection from corporal punishment and other cruel or degrading forms of punishment and general comment No. 13 on the right of the child to freedom from all forms of violence, of the Committee on the Rights of the Child. The content of general recommendation No. 14 on female circumcision, of the Committee on the Elimination of Discrimination against Women, is updated by the present joint general recommendation/general comment.
RATION ALE
FOR THE JOINT GENERAL RECOMMENDATION/ GENERAL COMMENT 6. The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child consistently note that harmful practices are deeply rooted in social attitudes according to which women and girls are regarded as inferior to men and boys based on stereotyped roles. They also highlight the gender dimension of violence and indicate that sex- and genderbased attitudes and stereotypes, power imbalances, inequalities and discrimination perpetuate the widespread existence of practices that often involve violence or coercion. It is also important to recall that the Committees are concerned that the practices are also used to justify gender-based violence as a form of “protection” or control of women1 and children in the home or community, at school or in other educational settings and institutions and in wider society. Moreover, the Committees draw States parties’ attention to the fact that sex- and gender-based discrimination intersects with other factors that affect women2 and girls, in particular those who belong to, or are perceived as belonging to, disadvantaged groups, and who are therefore at a higher risk of becoming victims of harmful practices. 7. Harmful practices are therefore grounded in discrimination based on sex, gender and age, among other things, and have often been justified by invoking sociocultural and religious customs and values, in addition to misconceptions relating to some disadvantaged groups of women and children. Overall, harmful practices are often associated with serious forms of violence or are themselves a form of violence against women and children. While the nature and prevalence of the practices vary by region and culture, the most prevalent and well documented are female genital mutilation, child and/or forced marriage, polygamy, crimes committed in the name of so-called honour and dowry-related violence. Given that those practices are frequently raised before both Committees, and in some cases have been demonstrably reduced through legislative and programmatic approaches, they are used herein as key illustrative examples. 1 Committee on the Elimination of Discrimination against Women general recommendation No. 19, para. 11; Committee on the Rights of the Child general comment No. 9 on the rights of children with disabilities, paras. 8, 10 and 79; and Committee on the Rights of the Child general comment No. 15 on the right of the child to the enjoyment of the highest attainable standard of health, paras. 8 and 9. 2 Committee on the Elimination of Discrimination against Women general recommendation No. 28 on the core obligations of States parties under article 2 of the Convention, para. 18.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
8. Harmful practices are endemic to a wide variety of communities in most countries. Some are also found in regions or countries in which they had not been previously documented, primarily owing to migration, whereas in other countries where such practices had disappeared they are now re-emerging as a result of such factors as conflict situations. 9. Many other practices having been identified as harmful practices are all strongly connected to and reinforce socially constructed gender roles and systems of patriarchal power relations and sometimes reflect negative perceptions of or discriminatory beliefs regarding certain disadvantaged groups of women and children, including individuals with disabilities or albinism. The practices include, but are not limited to, neglect of girls (linked to the preferential care and treatment of boys), extreme dietary restrictions, including during pregnancy (force-feeding, food taboos), virginity testing and related practices, binding, scarring, branding/infliction of tribal marks, corporal punishment, stoning, violent initiation rites, widowhood practices, accusations of witchcraft, infanticide and incest3. They also include body modifications that are performed for the purpose of beauty or marriageability of girls and women (such as fattening, isolation, the use of lip discs and neck elongation with neck rings)4 or in an attempt to protect girls from early pregnancy or from being subjected to sexual harassment and violence (such as breast ironing). In addition, many women and children increasingly undergo medical treatment and/or plastic surgery to comply with social norms of the body, rather than for medical or health reasons, and many are also pressured to be fashionably thin, which has resulted in an epidemic of eating and health disorders.
NORMATIVE CONTENT
OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN AND THE CONVENTION ON THE RIGHTS OF THE CHILD 10. Although the issue of harmful practices was less known at the time of drafting of the Conventions, both include provisions that cover harmful practices as human rights violations and oblige States parties to take steps to ensure that they are prevented and eliminated. In addition, the Committees have increasingly tackled the issue when examining States parties’ reports, in the ensuing dialogue with States parties and in their concluding observations. The issue has been further developed by the Committees
in their general recommendations and general comments.5 11. States parties to the Conventions have a duty to comply with their obligations to respect, protect and fulfil the rights of women and children. They also have a due-diligence obligation6 to prevent acts that impair the recognition, enjoyment or exercise of rights by women and children and ensure that private actors do not engage in discrimination against women and girls, including genderbased violence, in relation to the Convention on the Elimination of All Forms of Discrimination against Women, or any form of violence against children, in relation to the Convention on the Rights of the Child. 12. The Conventions outline the obligations of States parties to establish a well- defined legal framework in order to ensure the protection and promotion of human rights. An important first step in doing so is through the incorporation of the instruments into national legal frameworks. Both Committees stress that legislation aimed at eliminating harmful practices must include appropriate budgeting, implementing, monitoring and effective enforcement measures.7 13. Furthermore, the obligation to protect requires States parties to establish legal structures to ensure that harmful practices are promptly, impartially and independently investigated, that there is effective law enforcement and that effective remedies are provided to those who have been harmed by such practices. The Committees call upon States parties to explicitly prohibit by law and adequately sanction or criminalize harmful practices, in accordance with the gravity of the offence and harm caused, provide for means of prevention, protection, recovery, reintegration and redress for victims and combat impunity for harmful practices. 14. Given that the requirement to effectively address harmful practices is among the core obligations of States parties under the two Conventions, reservations to the
5 To date, the Committee on the Elimination of Discrimination against Women has referred to harmful practices in nine of its general recommendations: No. 3 on the implementation of article 5 of the Convention, No. 14, No. 19, No. 21 on equality in marriage and family relations, No. 24 on women and health, No. 25 on temporary special measures, No. 28 on the core obligations of States parties under article 2 of the Convention, No. 29 on the economic consequences of marriage, family relations and their dissolution and No. 30 on women in conflict prevention, conflict and post-conflict situations. The Committee on the Rights of the Child provides a non-exhaustive list of harmful practices in its general comments Nos. 8 and 13. 6 Due diligence should be understood as an obligation of States parties to the Conventions to prevent violence or violations of human rights, protect victims and witnesses from violations, investigate and punish those responsible, including private actors, and provide access to redress for human rights violations. See Committee on the Elimination of Discrimination against Women general recommendations Nos. 19, para. 9; 28, para. 13; 30, para. 15; the views and decisions of the Committee on individual communications and inquiries; and Committee on the Rights of the Child general comment No. 13, para. 5. 7 Committee on the Elimination of Discrimination against Women general recommendation No. 28, para. 38 (a), its concluding observations and Committee on the Rights of the Child general comment No. 13, para. 40.
BI A CK N D E X
247
U PV EDR A TED SION
CAUSES, FORMS relevant articles,8 which have the effect of broadly limiting or qualifying the obligations of States parties to respect, protect and fulfil the rights of women and children to live free from harmful practices, are incompatible with the object and purpose of the two Conventions and impermissible pursuant to article 28 (2) of the Convention on the Elimination of All Forms of Discrimination against Women and article 51 (2) of the Convention on the Rights of the Child.
C R I TER I A
FOR DETERMINING HARMFUL PRACTICES
17. The causes of harmful practices are multidimensional and include stereotyped sex- and gender-based roles, the presumed superiority or inferiority of either of the sexes, attempts to exert control over the bodies and sexuality of women and girls, social inequalities and the prevalence of male-dominated power structures. Efforts to change the practices must address those underlying systemic and structural causes of traditional, re-emerging and emerging harmful practices, empower girls and women and boys and men to contribute to the transformation of traditional cultural attitudes that condone harmful practices, act as agents of such change and strengthen the capacity of communities to support such processes.
15. Harmful practices are persistent practices and forms of behaviour that are grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/ or psychological harm or suffering. The harm that such practices cause to the victims surpasses the immediate physical and mental consequences and often has the purpose or effect of impairing the recognition, enjoyment and exercise of the human rights and fundamental freedoms of women and children. There is also a negative impact on their dignity, physical, psychosocial and moral integrity and development, participation, health, education and economic and social status. The practices are therefore reflected in the work of both Committees.
18. The efforts to combat harmful practices notwithstanding, the overall number of women and girls affected remains extremely high and may be increasing, including, for example, in conflict situations and as a result of technological developments such as the widespread use of social media. Through the examination of State parties’ reports, the Committees have noted that there is often continued adherence to harmful practices by members of practising communities who have moved to destination countries through migration or to seek asylum. Social norms and cultural beliefs supporting such harmful practices persist and are at times emphasized by a community in an attempt to preserve its cultural identity in a new environment, in particular in destination countries where gender roles provide women and girls with greater personal freedom.
16. For the purposes of the present joint general recommendation/general comment, practices should meet the following criteria to be regarded as harmful:
A. FEMALE GENITAL MUTILATION
a) They constitute a denial of the dignity and/or integrity of the individual and a violation of the human rights and fundamental freedoms enshrined in the two Conventions; b) They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/ or violence and limitations on their capacity to participate fully in society or develop and reach their full potential; c) They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, on the basis of sex, gender, age and other intersecting factors; d) They are imposed on women and children by family members, community members or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent. 8 Convention on the Elimination of All Forms of Discrimination against Women, arts. 2, 5 and 16, and Convention on the Rights of the Child, arts. 19 and 24 (3). 248
AND MANIFESTATIONS OF HARMFUL PRACTICES
19. Female genital mutilation, female circumcision or female genital cutting is the practice of partially or wholly removing the external female genitalia or otherwise injuring the female genital organs for non-medical or nonhealth reasons. In the context of the present joint general recommendation/general comment, it is referred to as female genital mutilation. Female genital mutilation is performed in every region and, within some cultures, is a requirement for marriage and believed to be an effective method of controlling the sexuality of women and girls. It may have various immediate and/or long-term health consequences, including severe pain, shock, infections and complications during childbirth (affecting both the mother and the child), long-term gynaecological problems such as fistula, psychological effects and death. The World Health Organization and the United Nations Children’s Fund estimate that between 100 million and 140 million girls and women worldwide have been subjected to a type of female genital mutilation.
B. CHILD AND/OR FORCED MARRIAGE 20. Child marriage, also referred to as early marriage, is any marriage where at least one of the parties is under 18 years of age. The overwhelming majority of child marriages, both
BACK
KEYWORDS INDEX
U PV EDR A TED SION formal and informal, involve girls, although at times their spouses are also under 18 years of age. A child marriage is considered to be a form of forced marriage, given that one and/or both parties have not expressed full, free and informed consent. As a matter of respecting the child’s evolving capacities and autonomy in making decisions that affect her or his life, a marriage of a mature, capable child below 18 years of age may be allowed in exceptional circumstances, provided that the child is at least 16 years of age and that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the evidence of maturity, without deference to culture and tradition. 21. In some contexts, children are betrothed or married very young and, in many cases, young girls are forced to marry a man who may be decades older. In 2012, the United Nations Children’s Fund reported that almost 400 million women between 20 and 49 years of age around the world had been married or had entered into a union before reaching 18 years of age.9 The Committees have therefore been paying particular attention to cases in which girls have been married against their full, free and informed consent, such as when they have been married too young to be physically and psychologically ready for adult life or to make conscious and informed decisions and thus not ready to consent to marriage. Other examples include cases in which guardians have the legal authority to consent to marriage of girls in accordance with customary or statutory law and in which girls are thus married contrary to the right to freely enter into marriage. 22. Child marriage is often accompanied by early and frequent pregnancy and childbirth, resulting in higher than average maternal morbidity and mortality rates. Pregnancy-related deaths are the leading cause of mortality for girls between 15 and 19 years of age, whether married or unmarried, around the world. Infant mortality among the children of very young mothers is higher (sometimes as much as two times higher) than among those of older mothers. In cases of child and/or forced marriage, in particular where the husband is significantly older than the wife, and where girls have limited education, the girls generally have limited decision-making power in relation to their own lives. Child marriage also contributes to higher rates of school dropout, especially among girls, forced exclusion from school and an increased risk of domestic violence, in addition to limiting the enjoyment of the right to freedom of movement. 23. Forced marriages are marriages in which one and/ or both parties have not personally expressed their full and free consent to the union. They may be manifested in various forms, including child marriage, as indicated above, exchange or trade-off marriages (i.e. baad and baadal), servile marriages and levirate marriages (coercing a widow to marry a relative of her deceased husband). In some contexts, a forced marriage may occur when a rapist is permitted to escape criminal sanctions by marrying the victim, usually with the consent of her family. Forced marriages may occur in the context of migration in order to ensure that a girl marries within the family’s community of origin or to provide extended family members or others 9 See www.apromiserenewed.org.
with documents to migrate to and/or live in a particular destination country. Forced marriages are also increasingly being used by armed groups during conflict or may be a means for a girl to escape post-conflict poverty.10 Forced marriage may also be defined as a marriage in which one of the parties is not permitted to end or leave it. Forced marriages often result in girls lacking personal and economic autonomy and attempting to flee or commit self- immolation or suicide to avoid or escape the marriage. 24. The payment of dowries and bride prices, which varies among practising communities, may increase the vulnerability of women and girls to violence and to other harmful practices. The husband or his family members may engage in acts of physical or psychological violence, including murder, burning and acid attacks, for failure to fulfil expectations regarding the payment of a dowry or its size. In some cases, families will agree to the temporary “marriage” of their daughter in exchange for financial gains, also referred to as a contractual marriage, which is a form of trafficking in human beings. States parties to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography have explicit obligations with regard to child and/or forced marriages that include dowry payments or bride prices because they could constitute a sale of children as defined in article 2 (a) of the Protocol.11 The Committee on the Elimination of Discrimination against Women has repeatedly stressed that allowing marriage to be arranged by such payment or preferment violates the right to freely choose a spouse and has in its general recommendation No. 29 outlined that such practice should not be required for a marriage to be valid and that such agreements should not be recognized by a State party as enforceable.
C. POLYGAMY 25. Polygamy is contrary to the dignity of women and girls and infringes on their human rights and freedoms, including equality and protection within the family. Polygamy varies across, and within, legal and social contexts and its impact includes harm to the health of wives, understood as physical, mental and social well-being, the material harm and deprivation that wives are liable to suffer and emotional and material harm to children, often with serious consequences for their welfare. 26. While many States parties have chosen to ban polygamy, it continues to be practised in some countries, whether legally or illegally. Although throughout history polygamous family systems have been functional in some agricultural societies as a way of ensuring larger labour forces for individual families, studies have shown that polygamy actually often results in increased poverty in the family, especially in rural areas. 27. Both women and girls find themselves in polygamous unions, with evidence showing that girls are much more likely to be married or betrothed to much older men, increasing the risk of violence and violations of their rights. 10 Committee on the Elimination of Discrimination against Women general recommendation No. 30, para. 62 11 See also art. 3 (1)(a)(i).
BI A CK N D E X
249
U PV EDR A TED SION
HOLISTIC FRAMEWORK FOR ADDRESSING HARMFUL PRACTICES
The coexistence of statutory laws with religious, personal status and traditional customary laws and practices often contributes to the persistence of the practice. In some States parties, however, polygamy is authorized by civil law. Constitutional and other provisions that protect the right to culture and religion have also at times been used to justify laws and practices that allow for polygamous unions. 28. States parties to the Convention on the Elimination of All Forms of Discrimination against Women have explicit obligations to discourage and prohibit polygamy because it is contrary to the Convention.12 The Committee on the Elimination of Discrimination against Women also contends that polygamy has significant ramifications for the economic well-being of women and their children.13
D. CRIMES COMMITTED IN THE NAME OF SO-CALLED HONOUR 29. Crimes committed in the name of so-called honour are acts of violence that are disproportionately, although not exclusively, committed against girls and women because family members consider that some suspected, perceived or actual behaviour will bring dishonour to the family or community. Such forms of behaviour include entering into sexual relations before marriage, refusing to agree to an arranged marriage, entering into a marriage without parental consent, committing adultery, seeking divorce, dressing in a way that is viewed as unacceptable to the community, working outside the home or generally failing to conform to stereotyped gender roles. Crimes in the name of so-called honour may also be committed against girls and women because they have been victims of sexual violence. 30. Such crimes include murder and are frequently committed by a spouse, female or male relative or a member of the victim’s community. Rather than being viewed as criminal acts against women, crimes committed in the name of so-called honour are often sanctioned by the community as a means of preserving and/or restoring the integrity of its cultural, traditional, customary or religious norms following alleged transgressions. In some contexts, national legislation or its practical application, or the absence thereof, allows for the defence of honour to be presented as an exculpatory or a mitigating circumstance for perpetrators of such crimes, resulting in reduced sanctions or impunity. In addition, prosecution of cases may be impeded by unwillingness on the part of individuals with knowledge of the case to provide corroborating evidence. 12 Committee on the Elimination of Discrimination against Women general recommendations Nos. 21, 28 and 29. 13 Committee on the Elimination of Discrimination against Women general recommendation No. 29, para. 27. 250
31. Both Conventions contain specific references to the elimination of harmful practices. States parties to the Convention on the Elimination of All Forms of Discrimination against Women are obliged to plan and adopt appropriate legislation, policies and measures and ensure that their implementation responds effectively to specific obstacles, barriers and resistance to the elimination of discrimination that give rise to harmful practices and violence against women (arts. 2 and 3). States parties must, however, be able to demonstrate the direct relevance and appropriateness of the measures that have been taken, ensuring first and foremost that the human rights of women are not violated, and demonstrate whether such measures will achieve the desired effect and result. Furthermore, the obligation of States parties to pursue such targeted policies is of an immediate nature and States parties cannot justify any delay on any grounds, including cultural and religious grounds. States parties are also obliged to take all appropriate measures, including temporary special measures (art. 4 (1))14 to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices that are based on the idea of the inferiority or the superiority of either sexes or on stereotyped roles for men and women (art. 5 (a)) and to ensure that the betrothal and the marriage of a child will have no legal effect (art. 16 (2)). 32. The Convention on the Rights of the Child, on the other hand, obliges States parties to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children (art. 24 (3)). In addition, it provides for the right of the child to be protected from all forms of violence, including physical, sexual or psychological violence (art. 19) and requires States parties to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37 (a)). It applies the four general principles of the Convention to the issue of harmful practices, namely protection from discrimination (art. 2), ensuring the best interests of the child (art. 3 (1)),15 upholding the right to life, survival and development (art. 6) and the right of the child to be heard (art. 12). 33. In both instances, the effective prevention and elimination of harmful practices require the establishment of a well-defined, rights-based and locally relevant holistic strategy that includes supportive legal and policy measures, including social measures that are combined with commensurate political commitment and accountability at all levels. The obligations outlined in the Conventions provide the basis for the development of a holistic strategy to eliminate harmful practices, the elements of which are set out herein. 14 Committee on the Elimination of Discrimination against Women general recommendation No. 25, para. 38. 15 Committee on the Rights of the Child general comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 38. Such recognition notwithstanding, disaggregated data on harmful practices remain limited and are seldom comparable by country and over time, resulting in limited understanding of the extent and evolution of the problem and identification of adequately tailored and targeted measures. 39. The Committees recommend that the States parties to the Conventions: 34. Such a holistic strategy must be mainstreamed and coordinated both vertically and horizontally and integrated into national efforts to prevent and address all forms of harmful practices. Horizontal coordination requires organization across sectors, including education, health, justice, social welfare, law enforcement, immigration and asylum and communications and media. Similarly, vertical coordination requires organization between actors at the local, regional and national levels and with traditional and religious authorities. To facilitate the process, consideration should be given to delegating responsibility for the work to an existing or specifically established high-level entity, in cooperation with all relevant stakeholders. 35. The implementation of any holistic strategy necessarily requires the provision of adequate organizational, human, technical and financial resources that are supplemented with appropriate measures and tools, such as regulations, policies, plans and budgets. In addition, States parties are obliged to ensure that an independent monitoring mechanism is in place to track progress in protecting women and children from harmful practices and in realizing their rights. 36. Strategies aimed at eliminating harmful practices also need to involve a wide range of other stakeholders, including national independent human rights institutions, health, education and law enforcement professionals, members of civil society and those who engage in the practices.
A. DATA COLLECTION AND MONITORING 37. The regular and comprehensive collection, analysis, dissemination and use of quantitative and qualitative data are crucial to ensuring effective policies, developing appropriate strategies and formulating actions, as well as evaluating impacts, monitoring progress achieved towards the elimination of harmful practices and identifying reemerging and emerging harmful practices. The availability of data allows for the examination of trends and enables the establishment of the relevant connections between policies and effective programme implementation by State and non-State actors and the corresponding changes in attitudes, forms of behaviour, practices and prevalence rates. Data disaggregated by sex, age, geographical location, socioeconomic status, education level and other key factors are central to the identification of high-risk and disadvantaged groups of women and children, which will guide policy formulation and action to address harmful practices.
a) Accord priority to the regular collection, analysis, dissemination and use of quantitative and qualitative data on harmful practices disaggregated by sex, age, geographical location, socioeconomic status, education level and other key factors and ensure that such activities are adequately resourced. Regular data collection systems should be established and/or maintained in the health- care and social services, education and judicial and law enforcement sectors on protection-related issues; b) Collect data through the use of national demographic and indicator surveys and censuses, which may be supplemented by data from nationally representative household surveys. Qualitative research should be conducted through focus group discussions, in-depth key informant interviews with a wide variety of stakeholders, structured observations, social mapping and other appropriate methodologies.
B. LEGISLATION AND ITS ENFORCEMENT 40. A key element of any holistic strategy is the development, enactment, implementation and monitoring of relevant legislation. Each State party is under the obligation16 to send a clear message of condemnation of harmful practices, provide legal protection for victims, enable State and non-State actors to protect women and children at risk, provide appropriate responses and care and ensure the availability of redress and an end to impunity. 41. The enactment of legislation alone is, however, insufficient to combat harmful practices effectively. In accordance with the requirements of due diligence, legislation must therefore be supplemented with a comprehensive set of measures to facilitate its implementation, enforcement and follow-up and monitoring and evaluation of the results achieved. 42. Contrary to their obligations under both Conventions, many States parties maintain legal provisions that justify, allow or lead to harmful practices, such as legislation that allows for child marriage, provides the defence of socalled honour as an exculpatory or mitigating factor for crimes committed against girls and women or enables a perpetrator of rape and/or other sexual crimes to avoid sanctions by marrying the victim. 43. In States parties with plural legal systems, even where laws explicitly prohibit harmful practices, prohibition 16 See Convention on the Elimination of All Forms of Discrimination against Women, arts. 2 (a)-(c), 2 (f) and 5, and Committee on the Rights of the Child general comment No. 13.
BI A CK N D E X
251
U PV EDR A TED SION may not be enforced effectively because the existence of customary, traditional or religious laws may actually support those practices. 44. Prejudices and weak capacity to address the rights of women and children among judges in customary and religious courts or traditional adjudication mechanisms and the belief that matters falling within the purview of such customary systems should not be subjected to any review or scrutiny by the State or other judicial bodies deny or limit the access to justice of victims of harmful practices. 45. The full and inclusive participation of relevant stakeholders in the drafting of legislation against harmful practices can ensure that the primary concerns relating to the practices are accurately identified and addressed. Engaging with and soliciting input from practising communities, other relevant stakeholders and members of civil society is central to this process. Care should be taken, however, to ensure that prevailing attitudes and social norms that support harmful practices do not weaken efforts to enact and enforce legislation. 46. Many States parties have taken steps to decentralize government power through devolution and delegation, but this should not reduce or negate the obligation to enact legislation that prohibits harmful practices and is applicable throughout their jurisdiction. Safeguards must be put in place to ensure that decentralization or devolution does not lead to discrimination with regard to protection of women and children against harmful practices in different regions and cultural zones. Devolved authorities need to be equipped with the human, financial, technical and other resources necessary to effectively enforce legislation that aims to eliminate harmful practices. 47. Cultural groups engaged in harmful practices may contribute to spreading such practices across national boundaries. Where this occurs, appropriate measures are needed to contain the spread. 48. National human rights institutions have a key role to play in promoting and protecting human rights, including the right of individuals to be free from harmful practices, and enhancing public awareness of those rights. 49. Individuals providing services for women and children, especially medical personnel and teachers, are uniquely placed to identify actual or potential victims of harmful practices. They are, however, often bound by rules of confidentiality that may conflict with their obligation to report the actual occurrence of a harmful practice or the potential for it to occur. This must be overcome with specific regulations that make it mandatory for them to report such incidents.
252
50. Where medical professionals or government employees or civil servants are involved or complicit in carrying out harmful practices, their status and responsibility, including to report, should be seen as an aggravating circumstance in the determination of criminal sanctions or administrative sanctions such as loss of a professional licence or termination of contract, which should be preceded by the issuance of warnings. Systematic training for relevant professionals is considered to be an effective preventive measure in this regard. 51. Although criminal law sanctions must be consistently enforced in ways that contribute to the prevention and elimination of harmful practices, States parties must also take into account the potential threats to and negative impact on victims, including acts of retaliation. 52. Monetary compensation may not be feasible in areas of high prevalence. In all instances, however, women and children affected by harmful practices should have access to legal remedies, victim support and rehabilitation services and social and economic opportunities. 53. The best interests of the child and the protection of the rights of girls and women should always be taken into consideration and the necessary conditions must be in place to enable them to express their point of view and ensure that their opinions are given due weight. Careful consideration should also be given to the potential shortterm and long-term impact on children or women of the dissolution of child and/or forced marriages and the return of dowry payments and bride prices. 54. States parties, and in particular immigration and asylum officials, should be aware that women and girls may be fleeing their country of origin to avoid undergoing a harmful practice. Those officials should receive appropriate cultural, legal and gender-sensitive training on what steps need to be taken for the protection of such women and girls. 55. The Committees recommend that the States parties to the Conventions adopt or amend legislation with a view to effectively addressing and eliminating harmful practices. In doing so, they should ensure: a) That the process of drafting legislation is fully inclusive and participatory. For that purpose, they should conduct targeted advocacy and awareness-raising and use social mobilization measures to generate broad public knowledge of and support for the drafting, adoption, dissemination and implementation of the legislation; b) That the legislation is in full compliance with the relevant obligations outlined in the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child and other international human rights standards that prohibit harmful practices and that it takes precedence over customary, traditional or religious laws that allow, condone or prescribe any harmful practice, especially in countries with plural legal systems;
BACK
KEYWORDS INDEX
U PV EDR A TED SION c) That they repeal without further delay all legislation that condones, allows or leads to harmful practices, including traditional, customary or religious laws and any legislation that accepts the defence of honour as a defence or mitigating factor in the commission of crimes in the name of so-called honour; d) That the legislation is consistent and comprehensive and provides detailed guidance on prevention, protection, support and follow-up services and assistance for victims, including towards their physical and psychological recovery and social reintegration, and is complemented by adequate civil and/or administrative legislative provisions; e) That the legislation adequately addresses, including by providing the basis for the adoption of temporary special measures, the root causes of harmful practices, including discrimination on the basis of sex, gender, age and other intersecting factors, focuses on the human rights and needs of the victims and fully takes into account the best interests of children and women; f) That a minimum legal age of marriage for girls and boys, with or without parental consent, is established at 18 years. When a marriage at an earlier age is allowed in exceptional circumstances, the absolute minimum age must not be below 16 years, the grounds for obtaining permission must be legitimate and strictly defined by law and the marriage must be permitted only by a court of law upon the full, free and informed consent of the child or both children, who must appear in person before the court; g) That a legal requirement of marriage registration is established and effective implementation is provided through awareness-raising, education and the existence of adequate infrastructure to make registration accessible to all persons within their jurisdiction; h) That a national system of compulsory, accessible and free birth registration is established in order to effectively prevent harmful practices, including child marriage; i) That national human rights institutions are mandated to consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by women and children, in a confidential, gender-sensitive and child-friendly manner; j) That it is made mandatory by law for professionals and institutions working for and with children and women to report actual incidents or the risk of such incidents if they have reasonable grounds to believe that a harmful practice has occurred or may occur. Mandatory reporting responsibilities should ensure the protection of the privacy and confidentiality of those who report;
in a State in which they are not criminalized; m) That legislation and policies relating to immigration and asylum recognize the risk of being subjected to harmful practices or being persecuted as a result of such practices as a ground for granting asylum. Consideration should also be given, on a case-by-case basis, to providing protection to a relative who may be accompanying the girl or woman; n) That the legislation includes provisions on regular evaluation and monitoring, including in relation to implementation, enforcement and follow-up; o) That women and children subjected to harmful practices have equal access to justice, including by addressing legal and practical barriers to initiating legal proceedings, such as the limitation period, and that the perpetrators and those who aid or condone such practices are held accountable; p) That the legislation includes mandatory restraining or protection orders to safeguard those at risk of harmful practices and provides for their safety and measures to protect victims from retribution; q) That victims of violations have equal access to legal remedies and appropriate reparations in practice.
C. PREVENTION OF HARMFUL PRACTICES 56. One of the first steps in combating harmful practices is through prevention. Both Committees have underlined that prevention can be best achieved through a rightsbased approach to changing social and cultural norms, empowering women and girls, building the capacity of all relevant professionals who are in regular contact with victims, potential victims and perpetrators of harmful practices at all levels and raising awareness of the causes and consequences of harmful practices, including through dialogue with relevant stakeholders. 1. ESTABLISHING RIGHTS-BASED SOCIAL AND CULTURAL NORMS 57. A social norm is a contributing factor to and social determinant of certain practices in a community that may be positive and strengthen its identity and cohesion or may be negative and potentially lead to harm. It is also a social rule of behaviour that members of a community are expected to observe. This creates and sustains a collective sense of social obligation and expectation that conditions the behaviour of individual community members, even if
k) That all initiatives to draft and amend criminal laws must be coupled with protection measures and services for victims and those who are at risk of being subjected to harmful practices; l) That legislation establishes jurisdiction over offences of harmful practices that applies to nationals of the State party and habitual residents even when they are committed
BI A CK N D E X
253
U PV EDR A TED SION they are not personally in agreement with the practice. For example, where female genital mutilation is the social norm, parents are motivated to agree to its being performed on their daughters because they see other parents doing so and believe that others expect them to do the same. The norm or practice is often perpetuated by other women in community networks who have already undergone the procedure and exert additional pressure on younger women to conform to the practice or risk ostracism, being shunned and stigmatization. Such marginalization may include the loss of important economic and social support and social mobility. Conversely, if individuals conform to the social norm, they expect to be rewarded, for example through inclusion and praise. Changing social norms that underlie and justify harmful practices requires that such expectations be challenged and modified. 58. Social norms are interconnected, meaning that harmful practices cannot be addressed in isolation, but within a broader context based on a comprehensive understanding of how the practices are linked to other cultural and social norms and other practices. This indicates the need to adopt a rights-based approach that is founded on recognition that rights are indivisible and interdependent. 59. An underlying challenge that must be confronted is the fact that harmful practices may be perceived as having beneficial effects for the victim and members of their family and community. Consequently, there are significant limitations to any approach that targets only individual behavioural change. Instead, there is a need for a broad-based and holistic collective or communitybased approach. Culturally sensitive interventions that reinforce human rights and enable practising communities to collectively explore and agree upon alternative ways to fulfil their values and honour or celebrate traditions without causing harm and violating the human rights of women and children can lead to the sustainable and largescale elimination of the harmful practices and the collective adoption of new social rules. Public manifestations of a collective commitment to alternative practices can help to reinforce their long-term sustainability. In this regard, the active involvement of community leaders is crucial. 60. The Committees recommend that the States parties to the Conventions ensure that any efforts undertaken to tackle harmful practices and to challenge and change underlying social norms are holistic, community based and founded on a rights-based approach that includes the active participation of all relevant stakeholders, especially women and girls.
this context, education is an important tool for empowering women and girls to claim their rights. 62. There is a clear correlation between the low educational attainment of girls and women and the prevalence of harmful practices. States parties to the Conventions have obligations to ensure the universal right to high-quality education and to create an enabling environment that allows girls and women to become agents of change (Convention on the Rights of the Child, arts. 28-29; Convention on the Elimination of All Forms of Discrimination against Women, art. 10). This entails providing universal, free and compulsory primary school enrolment and ensuring regular attendance, discouraging dropping out, eliminating existing gender disparities and supporting access for the most marginalized girls, including those living in remote and rural communities. In implementing the obligations, consideration should be given to making schools and their surroundings safe, friendly to girls and conducive to their optimal performance. 63. The completion of primary and secondary education provides girls with short- term and long-term benefits by contributing to the prevention of child marriage and adolescent pregnancy and lower rates of infant and maternal mortality and morbidity, preparing women and girls to better claim their right to freedom from violence and increasing their opportunities for effective participation in all spheres of life. The Committees have consistently encouraged States parties to take measures to boost enrolment and retention in secondary education, including by ensuring that pupils complete primary school, abolishing school fees for both primary and secondary education, promoting equitable access to secondary education, including technical-vocational educational opportunities and giving consideration to making secondary education compulsory. The right of adolescent girls to continue their studies, during and after pregnancy, can be guaranteed through non-discriminatory return policies. 64. For out-of-school girls, non-formal education is often their only route to learning and should provide basic education and instruction in life skills. It is an alternative to formal schooling for those who did not complete primary or secondary school and may also be made available through radio programmes and other media, including digital media.
2. EMPOWERMENT OF WOMEN AND GIRLS 61. States parties have an obligation to challenge and change patriarchal ideologies and structures that constrain women and girls from fully exercising their human rights and freedoms. For girls and women to overcome the social exclusion and poverty that many experience, which increase their vulnerability to exploitation, harmful practices and other forms of gender-based violence, they need to be equipped with the skills and competencies necessary to assert their rights, including to make autonomous and informed decisions and choices about their own lives. In 254
BACK
KEYWORDS INDEX
U PV EDR A TED SION 65. Women and girls are enabled to build their economic assets through training in livelihood and entrepreneurship skills and benefit from programmes that offer an economic incentive to postpone marriage until 18 years of age, such as scholarships, microcredit programmes or savings schemes (Convention on the Elimination of All Forms of Discrimination against Women, arts. 11 and 13; Convention on the Rights of the Child, art. 28). Complementary awareness-raising programmes are essential to communicating the right of women to work outside the home and challenging taboos about women and work. 66. Another means of encouraging the empowerment of women and girls is by building their social assets. This can be facilitated through the creation of safe spaces where girls and women can connect with peers, mentors, teachers and community leaders and express themselves, speak out, articulate their aspirations and concerns and participate in decisions affecting their lives. This can help them to develop self-esteem and self-efficacy, communication, negotiation and problem- solving skills and awareness of their rights and can be particularly important for migrant girls. Given that men have traditionally held positions of power and influence at all levels, their engagement is crucial to ensuring that children and women have the support and committed engagement of their families, communities, civil society and policymakers. 67. Childhood, and early adolescence at the latest, are entry points for assisting both girls and boys and supporting them to change gender-based attitudes and adopt more positive roles and forms of behaviour in the home, at school and in wider society. This means facilitating discussions with them on social norms, attitudes and expectations that are associated with traditional femininity and masculinity and sex- and gender-linked stereotypical roles and working in partnership with them to support personal and social change aimed at eliminating gender inequality and promoting the importance of valuing education, especially girls’ education, in the effort to eliminate harmful practices that specifically affect pre-adolescent and adolescent girls. 68. Women and adolescent girls who have been, or are at risk of being, subjected to harmful practices face significant risks to their sexual and reproductive health, in particular in a context where they already encounter barriers to decision-making on such issues arising from lack of adequate information and services, including adolescent-friendly services. Special attention is therefore needed to ensure that women and adolescents have access to accurate information about sexual and reproductive health and rights and on the impacts of harmful practices, as well as access to adequate and confidential services. Age-appropriate education, which includes science-based information on sexual and reproductive health, contributes to empowering girls and women to make informed decisions and claim their rights. To this end, health-care providers and teachers with adequate knowledge, understanding and skills play a crucial role in conveying the information, preventing harmful practices and identifying and assisting women and girls who are victims of or might be at risk of being subjected to them.
69. The Committees recommend that the States parties to the Conventions: a) Provide universal, free and compulsory primary education that is girl friendly, including in remote and rural areas, consider making secondary education mandatory while also providing economic incentives for pregnant girls and adolescent mothers to complete secondary school and establish non- discriminatory return policies; b) Provide girls and women with educational and economic opportunities in a safe and enabling environment where they can develop their self-esteem, awareness of their rights and communication, negotiation and problemsolving skills; c) Include in the educational curriculum information on human rights, including those of women and children, gender equality and self-awareness and contribute to eliminating gender stereotypes and fostering an environment of non-discrimination; d) Ensure that schools provide age-appropriate information on sexual and reproductive health and rights, including in relation to gender relations and responsible sexual behaviour, HIV prevention, nutrition and protection from violence and harmful practices; e) Ensure access to non-formal education programmes for girls who have dropped out of regular schooling, or who have never enrolled and are illiterate, and monitor the quality of those programmes; f) Engage men and boys in creating an enabling environment that supports the empowerment of women and girls. 3. CAPACITY DEVELOPMENT AT ALL LEVELS 70. One of the primary challenges in the elimination of harmful practices relates to the lack of awareness or capacity of relevant professionals, including front-line professionals, to adequately understand, identify and respond to incidents or the risks of harmful practices. A comprehensive, holistic and effective approach to capacitybuilding should aim to engage influential leaders, such as traditional and religious leaders, and as many relevant professional groups as possible, including health, education and social workers, asylum and immigration authorities, the police, public prosecutors, judges and politicians at all levels. They need to be provided with accurate information about the practice and applicable human rights norms and standards with a view to promoting a change in the attitudes and forms of behaviour of their group and the wider community. 71. Where alternative dispute resolution mechanisms or traditional justice systems are in place, training on human rights and harmful practices should be provided to those responsible for their management. Furthermore, police officers, public prosecutors, judges and other law enforcement officials need training on the implementation
BI A CK N D E X
255
U PV EDR A TED SION of new or existing legislation criminalizing harmful practices to ensure that they are aware of the rights of women and children and are sensitive to the vulnerable status of victims. 72. In States parties in which the prevalence of harmful practices is primarily limited to immigrant communities, health-care providers, teachers and childcare professionals, social workers, police officers, migration officials and the justice sector must be sensitized and trained in how to identify girls and women who have been, or are at risk of being, subjected to harmful practices and which steps can and should be taken to protect them. 73. The Committees recommend that the States parties to the Conventions: a) Provide all relevant front-line professionals with information on harmful practices and applicable human rights norms and standards and ensure that they are adequately trained to prevent, identify and respond to incidents of harmful practices, including mitigating negative effects for victims and helping them to gain access to remedies and appropriate services; b) Provide training to individuals involved in alternative dispute resolution and traditional justice systems to appropriately apply key human rights principles, especially the best interests of the child and the participation of children in administrative and judicial proceedings; c) Provide training to all law enforcement personnel, including the judiciary, on new and existing legislation prohibiting harmful practices and ensure that they are aware of the rights of women and children and of their role in prosecuting perpetrators and protecting victims of harmful practices; d) Conduct specialized awareness and training programmes for health- care providers working with immigrant communities to address the unique healthcare needs of children and women who have undergone female genital mutilation or other harmful practices and provide specialized training also for professionals within child welfare services and services focused on the rights of women and the education and police and justice sectors, politicians and media personnel working with migrant girls and women. 4. AWARENESS-RAISING, PUBLIC DIALOGUE AND MANIFESTATIONS OF COMMITMENT 74. To challenge sociocultural norms and attitudes that underlie harmful practices, including male-dominated power structures, sex- and gender-based discrimination and age hierarchies, both Committees regularly recommend that States parties undertake comprehensive public information and awareness-raising campaigns that are part of long-term strategies to eliminate harmful practices. 75. Awareness-raising measures should include accurate information from trusted sources about the harm caused by the practices and convincing reasons as to why they should be eliminated. In this respect, the mass media can 256
perform an important function in ensuring new thinking, in particular through access by women and children to information and material aimed at the promotion of their social and moral well-being and physical and mental health, in line with obligations under both Conventions that help to protect them from harmful practices. 76. The launching of awareness-raising campaigns can provide an opportunity to initiate public discussions about harmful practices with a view to collectively exploring alternatives that do not cause harm or violate the human rights of women and children and reaching agreement that the social norms underlying and sustaining harmful practices can and should be changed. The collective pride of a community in identifying and adopting new ways to fulfil its core values will ensure the commitment and sustainability of new social norms that do not result in the infliction of harm or violate human rights. 77. The most effective efforts are inclusive and engage relevant stakeholders at all levels, especially girls and women from affected communities and boys and men. Moreover, those efforts require the active participation and support of local leaders, including through the allocation of adequate resources. Establishing or strengthening existing partnerships with relevant stakeholders, institutions, organizations and social networks (religious and traditional leaders, practitioners and civil society) can help to build bridges between constituencies. 78. Consideration could be given to the dissemination of information on positive experiences that followed the elimination of harmful practices within a local or diaspora community or within other practising communities from the same geographical region with similar backgrounds, as well as to the exchange of good practice, including from other regions. This may take the form of local, national or regional conferences or events, visits of community leaders or the use of audiovisual tools. In addition, awarenessraising activities need to be carefully designed so that they accurately reflect the local context, do not result in backlash reactions or foster stigma and/or discrimination against the victims and/or the practising communities. 79. Community-based and mainstream media can be important partners in awareness-raising and outreach regarding the elimination of harmful practices, including through joint initiatives with Governments to host debates or talk shows, prepare and screen documentaries and develop educational programmes for radio and television. The Internet and social media can also be valuable tools for providing information and opportunities for debate, while mobile telephones are increasingly being used to convey messages and engage with people of all ages. Community-based media can serve as a useful forum for information and dialogue and may include radio, street theatre, music, art, poetry and puppetry. 80. In States parties with effective and enforced legislation against harmful practices, there is a risk that practising communities will go into hiding or go abroad to carry out the practices. States parties hosting practising communities should support awareness-raising campaigns regarding the harmful impact on the victims or those at risk, as well
BACK
KEYWORDS INDEX
U PV EDR A TED SION as the legal implications of the violation, while at the same time preventing discrimination and stigma against those communities. To this end, steps should be taken to facilitate the social integration of such communities. 81. The Committees recommend that the States parties to the Conventions: a) Develop and adopt comprehensive awarenessraising programmes to challenge and change cultural and social attitudes, traditions and customs that underlie forms of behaviour that perpetuate harmful practices; b) Ensure that awareness-raising programmes provide accurate information and clear and unified messages from trusted sources about the negative impact of harmful practices on women, children, in particular girls, their families and society at large. Such programmes should include social media, the Internet and community communication and dissemination tools; c) Take all appropriate measures to ensure that stigma and discrimination are not perpetuated against the victims and/or practising immigrant or minority communities; d) Ensure that awareness-raising programmes targeting State structures engage decision makers and all relevant programmatic staff and key professionals working within local and national government and government agencies; e) Ensure that personnel of national human rights institutions are fully aware and sensitized to the human rights implications of harmful practices within the State party and that they receive support to promote the elimination of those practices; f) Initiate public discussions to prevent and promote the elimination of harmful practices, by engaging all relevant stakeholders in the preparation and implementation of the measures, including local leaders, practitioners, grass- roots organizations and religious communities. The activities should affirm the positive cultural principles of a community that are consistent with human rights and include information on experiences of successful elimination by formerly practising communities with similar backgrounds; g) Build or reinforce effective partnerships with the mainstream media to support the implementation of awareness-raising programmes and promote public discussions and encourage the creation and observance of self-regulatory mechanisms that respect the privacy of individuals.
D. PROTECTIVE MEASURES AND RESPONSIVE SERVICES
and medical intervention may be necessary to treat severe harm or prevent death. Victims of female genital mutilation or other harmful practices may also require medical treatment or surgical interventions to address the short-term and long-term physical consequences. The management of pregnancy and childbirth in women or girls who have undergone female genital mutilation must be included in pre-service and in-service training for midwives, doctors and other skilled birth attendants. 83. National protection systems or, in their absence, traditional structures should be mandated to be child friendly and gender sensitive and adequately resourced to provide all necessary protection services to women and girls who face a high risk of being subjected to violence, including girls running away to avoid being subjected to female genital mutilation, forced marriage or crimes committed in the name of so-called honour. Consideration should be given to the establishment of an easy-to- remember, free, around-the-clock helpline that is available and known nationwide. Appropriate safety and security measures for victims must be available, including specifically designed temporary shelters or specialized services within shelters for victims of violence. Given that perpetrators of harmful practices are often the spouse of the victim, a family member or a member of the victim’s community, protective services should seek to relocate victims outside their immediate community if there is reason to believe that they may be unsafe. Unsupervised visits must be avoided, especially when the issue may be considered one of so-called honour. Psychosocial support must also be available to treat the immediate and longterm psychological trauma of victims, which may include post-traumatic stress disorder, anxiety and depression. 84. When a woman or a girl who was subjected to or refused to undergo a practice leaves her family or community to seek refuge, her decision to return must be supported by adequate national protection mechanisms. In assisting her in making this free and informed choice, the mechanisms are required to ensure her safe return and reintegration based on the principle of her best interest, including avoiding revictimization. Such situations require close follow-up and monitoring to ensure that victims are protected and enjoy their rights in the short term and the long term. 85. Victims seeking justice for violations of their rights as a result of harmful practices often face stigmatization, a risk of revictimization, harassment and possible retribution. Steps must therefore be taken to ensure that the rights of girls and women are protected throughout the legal process, in accordance with articles 2 (c) and 15 (2) and (3) of the Convention on the Elimination of All Forms of Discrimination against Women, and that children are enabled to effectively engage in court proceedings as part of their right to be heard under article 12 of the Convention on the Rights of the Child.
82. Women and children who are victims of harmful practices are in need of immediate support services, including medical, psychological and legal services. Emergency medical services may be the most urgent and obvious, given that some of the harmful practices covered herein involve the infliction of extreme physical violence
BI A CK N D E X
257
U PV EDR A TED SION
DISSEMINATION
AND USE OF THE JOINT GENERAL RECOMMENDATION/ GENERAL COMMENT AND REPORTING
86. Many migrants have a precarious economic and legal status, which increases their vulnerability to all forms of violence, including harmful practices. Migrant women and children often do not have access to adequate services on an equal basis with citizens. 87. The Committees recommend that the States parties to the Conventions: a) Ensure that protection services are mandated and adequately resourced to provide all necessary prevention and protection services to children and women who are, or are at high risk of becoming, victims of harmful practices; b) Establish a free, 24-hour hotline that is staffed by trained counsellors, to enable victims to report instances when a harmful practice is likely to occur or has occurred, and provide referral to needed services and accurate information about harmful practices;
88. States parties should widely disseminate the present joint general recommendation/general comment to parliaments, Governments and the judiciary, nationally and locally. It should also be made known to children and women and all relevant professionals and stakeholders, including those working for and with children (i.e. judges, lawyers, police officers and other law enforcement officials, teachers, guardians, social workers, staff of public or private welfare institutions and shelters and health-care providers) and civil society at large. It should be translated into relevant languages and child-friendly/ appropriate versions and formats accessible to persons with disabilities should be made available. Conferences, seminars, workshops and other events should be held to share good practice on how best to implement it. It should also be incorporated into the formal pre-service and inservice training of all relevant professionals and technical staff and should be made available to all national human rights institutions, women’s organizations and other human rights non-governmental organizations. 89. States parties should include in their reports under the Conventions information about the nature and extent of attitudes, customs and social norms that perpetuate harmful practices and on the measures guided by the present joint general recommendation/general comment that they have implemented and the effects thereof.
c) Develop and implement capacity-building programmes on their role in protection for judicial officers, including judges, lawyers, prosecutors and all relevant stakeholders, on legislation prohibiting discrimination and on applying laws in a gender-sensitive and agesensitive manner in conformity with the Conventions; d) Ensure that children participating in legal processes have access to appropriate child-sensitive services to safeguard their rights and safety and to limit the possible negative impacts of the proceedings. Protective action may include limiting the number of times that a victim is required to give a statement and not requiring that individual to face the perpetrator or perpetrators. Other steps may include appointing a guardian ad litem (especially where the perpetrator is a parent or legal guardian) and ensuring that child victims have access to adequate child-sensitive information about the process and fully understand what to expect; e) Ensure that migrant women and children have equal access to services, regardless of their legal status.
258
BACK
KEYWORDS INDEX
U PV EDR A TED SION
TREATY RATIFICATION OR ACCESSION AND RESERVATIONS
90. States parties are encouraged to ratify the following instruments: a) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women; b) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; c) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; d) Optional Protocol to the Convention on the Rights of the Child on a communications procedure. 91. States parties should review and modify or withdraw any reservations to articles 2, 5 and 16, or their subparagraphs, of the Convention on the Elimination of All Forms of Discrimination against Women and articles 19 and 24 (3) of the Convention on the Rights of the Child. The Committee on the Elimination of Discrimination against Women considers reservations to those articles in principle incompatible with the object and purpose of the Conventions and thus impermissible under article 28 (2) of the Convention on the Elimination of All Forms of Discrimination against Women.
BI A CK N D E X
259
U PV EDR A TED SION
260
BACK
KEYWORDS INDEX
number 19
U PV EDR A TED SION
living in poverty, children living in alternative care and children in conflict with the law. 4. For the purpose of the present general comment, the following definitions apply: a) “Budget” includes public revenue mobilization, budget allocation and expenditures of States; b) “Obligations of implementation” refer to States parties’ obligations in paragraph 27 below; c) “General principles of the Convention” refer to the principles in section III; IV;
IN T R O DUC T I ON 1. Article 4 of the Convention on the Rights of the Child reads: States parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention. With regard to economic, social and cultural rights, States parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation. The present general comment will assist States parties in the implementation of article 4 in relation to public budgets. It identifies States parties’ obligations and makes recommendations on how to realize all the rights under the Convention, especially those of children in vulnerable situations, through effective, efficient, equitable, transparent and sustainable public budget decisionmaking. 2. Given that article 4 relates to all the rights of the child, and that all those rights can be affected by public budgets, the present general comment applies to the Convention and its Optional Protocols. It provides States parties with a framework to ensure that public budgets contribute to the realization of those rights, and, in section III, provides an analysis of the general principles of the Convention, contained in articles 2, 3, 6 and 12. 3. When referring to a “child” or “children”, the general comment includes all persons of any gender under the age of 18 whose rights are or can be directly or indirectly, positively or negatively, affected by public budget-related decisions. “Children in vulnerable situations” are those who are particularly susceptible to violations of their rights, such as, but not limited to, children with disabilities, children in refugee situations, children from minority groups, children 262
d) “Budget principles” refer to the principles in section
e) “Legislation” refers to all international, regional, national and subnational treaties and/or legislation relevant to children’s rights; f) “Policies” refer to all public policies, strategies, regulations, guidelines and statements, including their goals, objectives, indicators and targeted results, that affect the rights of the child, or could do so; g) “Programmes” refer to frameworks within which States parties set out to achieve the aims of their legislation and policies. Such programmes may directly or indirectly affect children, for example by affecting specific rights of the child, public budget processes, infrastructure and labour; h) “Subnational” refers to the administrative level, or levels, below the national level, such as regions, provinces, counties or municipalities. 5. In section I, the background, rationale and objective of the general comment are presented. Section II offers a legal analysis of article 4 in relation to public budgets. Section III interprets the general principles of the Convention in this context. Section IV is dedicated to principles of public budgeting. Section V considers how public budgets contribute to realizing the rights of the child. Section VI provides guidelines on disseminating the general comment.
A. BACKGROUND 6. The present general comment builds on general comment No. 5 (2003) on general measures of implementation of the Convention, which states that the concept of “general measures of implementation” is complex and that the Committee is likely to issue more detailed general comments on individual elements in
BACK
KEYWORDS INDEX
U PV EDR A TED SION due course.1 One such element is the utilization of public budgets. The present general comment also builds on the day of general discussion that the Committee held in 2007 on the responsibility of States regarding resources for the rights of the child. 7. The present general comment was informed by several United Nations resolutions and reports that set out budget principles from a human rights perspective, including: a) Human Rights Council resolution 28/19 aiming towards better investment in the rights of the child2, and the report of the United Nations High Commissioner for Human Rights that preceded the resolution, entitled “Towards better investment in the rights of the child” (A/ HRC/28/33). They address the role of national policies, resource mobilization, transparency, accountability, participation, allocation and spending, child protection systems, international cooperation and follow-up in relation to investment in children; b) General Assembly resolution 67/218 on promoting transparency, participation and accountability in fiscal policies, which emphasizes the need to improve the quality, efficiency and effectiveness of fiscal policies and encourages Member States to intensify efforts to enhance transparency, participation and accountability in fiscal policies. 8. The present general comment was also informed by consultations held by the Committee with representatives of States, the United Nations, non-governmental organizations, children and individual experts through surveys, meetings and regional consultations in Asia, Europe, Latin America and the Caribbean, the Middle East and North Africa, and sub-Saharan Africa. In addition, the general comment was informed by a global consultation with 2,693 children from 71 countries3, conducted via an online survey, focus groups and regional consultations in Asia, Europe and Latin America. The consultation included contributions from boys and girls of different backgrounds in terms of age, gender, ability, socioeconomic context, language, ethnicity, school enrolment, displacement and experience of child-participatory budgeting. The messages from children to public budgetary decision makers included: a) Plan well. There should be enough money in the budget to provide for all rights of children; b) It is impossible for you to invest in us if you do not ask us what to invest in! We know; you should ask; c) Do not forget to include children with special needs in your budgets; d) Spend money fairly and wisely. Don’t spend our money on something that is useless — be efficient, save money; e) Investing in children is a long-term investment, and it generates a lot, so remember to think of it; 1 See general comment No. 5, foreword. 2 The resolution was adopted without a vote. 3 Laura Lundy, Karen Orr and Chelsea Marshall, “Towards better investment in the rights of the child: the views of children” (Centre for Children’s Rights, Queen’s University, Belfast, and Child Rights Connect Working Group on Investment in Children, 2015).
f) Investment in our families is also an important way of securing our rights; g) Make sure there is no corruption; h) Recognize the rights of all citizens, both young and old, by listening to people’s opinions on matters of governance; (i) I would like the Government to be more accountable and transparent; (j) Publish records of how the money is spent; (k) Provide budget information to all children in ways that are easily understood and in media that are popular with children, like social media. 9. All the core human rights treaties contain provisions that are similar to article 4 of the Convention. The general comments addressing public budgets that have been issued in relation to those provisions should therefore be seen as complementing the present general comment4. 10. The present general comment concerns the management of States parties’ financial resources that directly or indirectly affect children within their jurisdiction. It acknowledges the Addis Ababa Action Agenda of the Third International Conference on Financing for Development (2015) and Transforming our world: the 2030 Agenda for Sustainable Development (2015). Those agendas address States’ management of resources related to international cooperation that affect children, such as programme, sector and budget support, South-South cooperation and interregional cooperation. The Committee recalls the statement of common understanding on human rights-based approaches to development cooperation and programming adopted by the United Nations Development Group (2003), the Paris Declaration on Aid Effectiveness: Ownership, Harmonisation, Alignment, Results and Mutual Accountability (2005), the Accra Agenda for Action (2008), and the Busan Partnership for Effective Development Cooperation (2011), which also address such management. In addition, the Committee is mindful of the potential relevance to the present general comment of existing and evolving national, regional and international standards related to public financial management, provided that such standards do not contradict the provisions of the Convention. Three examples are The International Handbook of Public Financial Management5, which highlights effectiveness, efficiency and equity in public financial management, The Fiscal Transparency Code, adopted by the International Monetary Fund in 2014, which calls for comprehensiveness, clarity, reliability, timeliness and relevance in public reporting on past, present and future public finances to enhance fiscal management and accountability, and the Principles on Promoting Responsible Sovereign Lending and Borrowing, adopted by the United Nations Conference on Trade and Development in 2012. 4 See, for example, Committee on Economic, Social and Cultural Rights, general comment No. 3 (1990) on the nature of States parties’ obligations. 5 Richard Allen, Richard Hemming and Barry Potter, eds., The International Handbook of Public Financial Management (Basingstoke, Palgrave Macmillan, 2013).
BI A CK N D E X
263
B. RATIONALE 11. The Committee recognizes the significant progress made by States parties in reviewing and bringing domestic legislation, policies and programmes into conformity with the provisions of the Convention and its Optional Protocols. At the same time, the Committee underlines that such legislation, policies and programmes cannot be implemented without sufficient financial resources being mobilized, allocated and spent in an accountable, effective, efficient, equitable, participatory, transparent and sustainable manner. 12. When examining States parties’ reports to the Committee, in discussions with representatives of States parties and in its concluding observations, the Committee has raised concerns regarding whether the size of the budget is sufficient to realize the rights of the child. The Committee reiterates that prioritizing children’s rights in budgets, at both national and subnational levels, as required by the Convention, contributes not only to realizing those rights, but also to long-lasting positive impacts on future economic growth, sustainable and inclusive development, and social cohesion. 13. Based on the above, the Committee emphasizes that States parties should take all children’s rights into consideration throughout all stages of their budget processes and administrative systems at the national and subnational levels. While recognizing that budget processes differ to some extent between States, and that certain States have developed their own child rights budgeting methods, the present general comment provides guidance regarding four major budgetary stages that concern all States, namely planning, enactment, execution and followup.
C. OBJECTIVE 14. The objective of the present general comment is to improve understanding of the obligations under the Convention in relation to budgeting for children’s rights so as to strengthen the realization of those rights, and to promote real change in the way budgets are planned, enacted, executed and followed up in order to advance implementation of the Convention and its Optional Protocols. 15. This objective has implications for measures taken throughout the budget process by government branches (executive, legislative and judicial), levels (national and subnational) and structures (such as ministries, departments or agencies). The obligations extend to donors and recipients of international cooperation. 16. The objective also has implications for other stakeholders in the budget process, such as national human rights institutions, the media, children, families and civil society organizations. States parties should, in ways appropriate to their contexts, provide enabling environments for the active monitoring and meaningful participation of such stakeholders in the budget process. 17. In addition, the objective has implications for States
in relation to awareness-raising and building the capacity of relevant public officials and others in relation to the content of the present general comment.
LEGAL AN ALYSIS
OF ARTICLE 4 IN RELATION TO PUBLIC BUDGETS
A. “STATES PARTIES SHALL UNDERTAKE” 18. The words “shall undertake” mean that States parties have no discretion as to whether or not to satisfy their obligation to undertake the appropriate legislative, administrative and other measures necessary to realize children’s rights, which includes measures related to public budgets. 19. Hence, all government branches, levels and structures that play a role in devising public budgets shall exercise their functions in a way that is consistent with the general principles of the Convention and the budget principles set out in sections III and IV below. States parties should also create an enabling environment to allow the legislature, judiciary and supreme audit institutions to do the same. 20. States parties should enable budget decision makers at all levels of the executive and the legislative to access the necessary information, data and resources, and build capacity to realize the rights of the child.
B. “ALL APPROPRIATE LEGISLATIVE, ADMINISTRATIVE AND OTHER MEASURES” 21. The obligation to undertake “all appropriate measures” includes the duty to ensure that: a) Laws and policies are in place to support resource mobilization, budget allocation and spending to realize children’s rights;
U PV EDR A TED SION b) The necessary data and information about children are collected, generated and disseminated to support the design and implementation of appropriate legislation, policies, programmes and budgets to advance the rights of the child; c) Sufficient public resources are mobilized, allocated and utilized effectively to fully implement approved legislation, policies, programmes and budgets; d) Budgets are systematically planned, enacted, implemented and accounted for at the national and subnational levels of the State, in a manner that ensures the realization of children’s rights. 22. Measures are considered appropriate when they are relevant to directly or indirectly advancing children’s rights in a given context, including that of public budgets. 23. “Legislative measures”, which States parties are obligated to take in relation to public budgets, include reviewing existing legislation, and developing and adopting legislation that aims to ensure that budgets are sufficiently large for the realization of children’s rights at the national and subnational levels. “Administrative measures” include the development and implementation of programmes that meet the aims of agreed legislation, and ensuring adequate public budgets to do so. “Other measures” can be understood to include, for example, the development of public budget participation mechanisms, and data or policies related to children’s rights. Public budgets can be seen to straddle all three categories of measures, while also being indispensable to the realization of other legislative, administrative and other measures. All government branches, levels and structures are responsible for advancing the rights of the child. 24. The Committee underlines that States parties have an obligation to show how the public budget-related measures they choose to take result in improvements in children’s rights. States parties shall show evidence of the outcomes obtained for children as a result of those measures. It is not enough to show evidence of measures taken without evidence of results if article 4 of the Convention is to be satisfied.
C. “FOR THE IMPLEMENTATION OF THE RIGHTS RECOGNIZED IN THE PRESENT CONVENTION” 25. The “rights recognized in the present Convention” include civil, political, economic, social and cultural rights. States parties have the obligation to immediately realize civil and political rights, and to implement economic, social and cultural rights “to the maximum extent of their available resources”. That implies that the full realization of those rights will necessarily be achieved progressively (see sect. II D below). 26. The implementation of the rights of the child requires close attention to all four stages of the public budget process: planning, enacting, executing and follow-up. The rights of all children should be given consideration by States
parties throughout the budget process, in accordance with the general principles of the Convention and the budget principles outlined in the present general comment. 27. In terms of budgets, “implementing children’s rights” means that States parties are obliged to mobilize, allocate and spend public resources in a manner that adheres to their obligations of implementation. States parties shall respect, protect and fulfil all the rights of the child, as follows: a) “Respect” means that States parties should not interfere directly or indirectly with the enjoyment of children’s rights. In relation to budgets, this means that the State shall refrain from interfering with the enjoyment of the rights of the child by, for example, discriminating against certain groups of children in budget decisions, or withdrawing funding or diverting resources away from existing programmes providing for children’s enjoyment of economic, social or cultural rights, except in the circumstances outlined in paragraph 31 below; b) “Protect” means that States parties shall prevent third parties from interfering with rights guaranteed under the Convention and the Optional Protocols. In terms of public budgets, examples of possible such third parties are the business sector6 and regional or international financial institutions that might play a role in the different stages of the public budget process. The obligation to protect implies that States parties should seek to ensure that their revenue mobilization, budget allocation and expenditures are not interfered with or undermined by third parties. This will require States parties to regulate the role of such third parties, set up complaints mechanisms and systematically intervene in cases of infringement by them. c) “Fulfil” requires States parties to take action to ensure the full realization of the rights of the child. States parties should: i) Facilitate children’s rights by taking measures that enable and assist children to enjoy their rights. In a budgetary context, this includes equipping all levels and structures of the executive, legislature and judiciary with the resources and information required to advance the rights of all children in a comprehensive and sustainable manner. This involves putting in place measures to increase knowledge and understanding of the Convention and its Optional Protocols within State functions, and fostering a culture that respects, protects and fulfils children’s rights. ii) Provide for children’s rights where States are unable, for reasons beyond their control, to realize those rights themselves by the means at their disposal. This obligation includes ensuring that reliable, disaggregated data and information are publicly available to assess and monitor the extent to which children are able to exercise their rights, for example, in different parts of the State. iii) Promote children’s rights by ensuring that there is appropriate education and public awareness concerning 6 See general comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, in which the Committee indicates that “States must take all necessary, appropriate and reasonable measures to prevent business enterprises from causing or contributing to abuses of children’s rights” (para. 28).
BI A CK N D E X
265
U PV EDR A TED SION
budget decision-making processes and the impacts they have. In relation to budgets, this means mobilizing, allocating and spending sufficient funds to communicate and engage with children, their families and caregivers about budget-related decisions, including legislation, policies and programmes that affect them. States parties should continuously assess the outcomes in different groups in order to identify where more effective promotion is required.
D. “WITH REGARD TO ECONOMIC, SOCIAL AND CULTURAL RIGHTS, STATES PARTIES SHALL UNDERTAKE SUCH MEASURES TO THE MAXIMUM EXTENT OF THEIR AVAILABLE RESOURCES” 28. In line with this obligation, States parties shall take all possible measures to mobilize, allocate and spend sufficient financial resources. Funds allocated to policies and programmes that further the realization of the rights in the Convention and its Optional Protocols should be spent optimally and in line with the general principles of the Convention and the budget principles outlined in the present general comment. 29. The Committee recognizes the evolution of the concepts of “maximum extent of available resources” and “progressive realization” in other core international human rights treaties7, and regards article 4 of the Convention as reflecting both. States parties shall thus take measures to the maximum of their available resources in relation to economic, social and cultural rights and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to obligations that are immediately applicable according to international law. 30. “States parties shall undertake such measures to the maximum extent of their available resources” means that States parties are expected to demonstrate that they have made every effort to mobilize, allocate and spend budget resources to fulfil the economic, social and cultural rights of all children. The Committee underlines the fact that children’s rights are interdependent and indivisible and that caution should be exercised in differentiating between economic, social and cultural rights on the one hand, and civil and political rights on the other. The realization of economic, social and cultural rights will frequently affect children’s ability to fully exercise their political and civil rights, and vice versa. 31. The obligation imposed on States parties by article 4 to realize children’s economic, social and cultural rights “to the maximum extent” also means that they should not take deliberate retrogressive measures in relation to 7 See, for example, art. 4 (2) of the Convention on the Rights of Persons with Disabilities. 266
economic, social and cultural rights8. States parties should not allow the existing level of enjoyment of children’s rights to deteriorate. In times of economic crisis, regressive measures may only be considered after assessing all other options and ensuring that children are the last to be affected, especially children in vulnerable situations. States parties shall demonstrate that such measures are necessary, reasonable, proportionate, non-discriminatory and temporary and that any rights thus affected will be restored as soon as possible. States parties should take appropriate measures so that the groups of children who are affected, and others with knowledge about those children’s situation, participate in the decision-making process related to such measures. The immediate and minimum core obligations9 imposed by children’s rights shall not be compromised by any retrogressive measures, even in times of economic crisis. 32. Article 44 of the Convention obliges States parties to regularly report on their progress in advancing the rights of children in their jurisdictions. Clear and consistent qualitative and quantitative goals and indicators should be used to illustrate the progressive realization of children’s economic, social and cultural rights to the maximum extent of available resources, as well as the realization of the immediate obligations imposed by those rights, and the realization of civil and political rights. States parties are expected to regularly review and improve their measures to ensure the availability and maximization of resources for the rights of all children. 33. The Committee places great importance on accountable, transparent, inclusive and participative decision-making processes at the national and subnational levels as a means of obtaining the resources necessary for the implementation of children’s rights, including economic, social and cultural rights. 34. Corruption and mismanagement of public resources in State revenue mobilization, allocation and spending represents a failure by the State to comply with its obligation to use the maximum of available resources. The Committee underlines the importance of States parties allocating resources to prevent and eliminate any corruption affecting children’s rights, in accordance with the United Nations Convention against Corruption.
E. “AND, WHERE NEEDED, WITHIN THE FRAMEWORK OF INTERNATIONAL COOPERATION” 35. States parties have an obligation to cooperate with one another in the promotion of universal respect for, and observance of, human rights,10 including the rights of the 8 See, for example, paras. 24 and 25 of the recommendations from the day of general discussion on the issue of resources for the rights of the child: responsibility of States (2007), general comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health, para. 72, and general comment No. 3 of the Committee on Economic, Social and Cultural Rights, para. 9. 9 See the core obligations specified in the general comments of the Committee on Economic, Social and Cultural Rights, such as No. 13 (1999) on the right to education, No. 14 (2000) on the right to the highest attainable standard of health, and No. 19 (2007) on the right to social security. 10 See the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970).
BACK
KEYWORDS INDEX
U PV EDR A TED SION
child. States that lack the resources needed to implement the rights enshrined in the Convention and its Optional Protocols are obliged to seek international cooperation, be it bilateral, regional, interregional, global or multilateral. States parties with resources for international cooperation have an obligation to provide such cooperation with the aim of facilitating the implementation of children’s rights in the recipient State. 36. States parties should demonstrate that, where necessary, they have made every effort to seek and implement international cooperation to realize the rights of the child. Such cooperation may include technical and financial support in relation to implementing children’s rights in the budget process, including from the United Nations.11 37. States parties should collaborate with other States’ efforts to mobilize the maximum available resources for children’s rights. 38. States parties’ cooperation strategies, on the part of both donors and recipients, should contribute to the realization of children’s rights and shall not impact negatively on children, especially those who are most vulnerable. 39. States parties should comply with their obligations under the Convention and the Optional Protocols when engaging in development cooperation as members of international organizations12, and when signing international agreements. Similarly, States parties should consider the potential impact on children’s rights when planning and implementing economic sanctions.
GENERAL PRINCIPLES OF THE CONVENTION AND PUBLIC BUDGETS
40. Four general principles within the Convention form the basis for all State decisions and actions that directly or indirectly relate to the rights of the child, including public budgets.
A. RIGHT TO NONDISCRIMINATION (ART. 2)
serve to prevent discrimination and shall not directly or indirectly discriminate against children in budget-related legislation, policies or programmes, in their content or implementation. 42. States parties should take proactive measures to ensure positive outcomes for all children in relation to legislation, policies and programmes by mobilizing sufficient revenue and allocating and spending funds accordingly. In order to achieve substantive equality, States parties should identify groups of children that qualify for special measures and use public budgets to implement such measures. 43. States parties should create an environment of nondiscrimination and take steps, including through the allocation of resources, to ensure that all their government branches, levels and structures, as well as civil society and the business sector, actively advance the right of children to be free from discrimination. 44. To achieve budgets that contribute to positive outcomes in terms of children’s enjoyment of their rights, States parties are required to address inequalities among children by reviewing and revising relevant legislation, policies and programmes, by increasing or reprioritizing certain parts of the budget, or improving the effectiveness, efficiency and equity of their budgets.
B. BEST INTERESTS OF THE CHILD (ART. 3) 45. Article 3 (1) of the Convention provides that the best interests of the child shall be a primary consideration in all actions concerning children. States parties are obliged to integrate and apply this principle in all legislative, administrative and judicial proceedings that have a direct or indirect impact on children13, including budgets. The best interests of the child should be a primary consideration throughout every phase of the budgetary process and in all budgetary decisions that affect children. 46. As the Committee noted in its general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, the rights set out in the Convention and its Optional Protocols provide the framework for assessing and determining the best interests of the child. This obligation is crucial when States weigh up competing budget allocation and spending priorities. States parties should be able to demonstrate how the best interests of the child have been considered in budgetary decision-making, including how they have been weighed against other considerations.
41. States parties are obliged to protect children from all kinds of discrimination “irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status” (art. 2 (1)). States parties, at all administrative levels, should
47. States parties should conduct child rights impact assessments14 in order to ascertain the effect of legislation, policies and programmes on all children at the national and subnational levels, especially children in vulnerable situations who may have special needs and therefore require a disproportionate share of spending in order to have their rights realized. Child rights impact
11 See art. 45 of the Convention. 12 See general comment No. 5, para. 64.
13 See general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, para. 6 (a). 14 See general comments No. 5, para. 45, and No. 14, paras. 35 and 99.
BI A CK N D E X
267
U PV EDR A TED SION assessments should be part of each stage of the budget process and should complement other monitoring and evaluation efforts. While States parties will apply different methodologies and practices when undertaking child rights impact assessments, they should use the Convention and its Optional Protocols, as well as relevant concluding observations and general comments issued by the Committee, in developing their frameworks. The child rights impact assessments should be informed by stakeholders, such as children, civil society organizations, experts, State government structures and academic institutions. The analysis should result in recommendations for amendments, alternatives and improvements and should be publicly available.
C. RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT (ART. 6) 48. Article 6 of the Convention provides that every child has an inherent right to life and that States parties shall ensure the survival and development of all children. In its general comment No. 5, the Committee states that the development of the child is “a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development” and that “implementation measures should be aimed at achieving the optimal development for all children” (para. 12). 49. The Committee recognizes that children have varying needs at different stages of their growth and development15. In their budget decisions, States parties should consider all factors required for children of different ages to survive, grow and develop. States parties should show their commitment to children’s rights by making visible the parts of their budgets that affect children in different age groups. 50. The Committee acknowledges that investment in early childhood development has a positive impact on children’s ability to exercise their rights, breaks poverty cycles and brings high economic returns. Underinvestment in children in their early years can be detrimental to cognitive development and can reinforce existing deprivations, inequalities and intergenerational poverty. 51. Ensuring the right to life, survival and development includes the need to consider budgets for different groups of children within the current generation, while also taking future generations into account by developing sustainable multi-year revenue and spending projections.
D. RIGHT TO BE HEARD (ART. 12) 52. Article 12 of the Convention establishes the right of every child to freely express his or her views in all matters affecting him or her, and for those views to be given due weight in accordance with the child’s age and maturity16. States parties should regularly hear children’s views on budget decisions that affect them, through mechanisms 15 See general comment No. 7 (2005) on implementing child rights in early childhood, and general comment No. 20 on the rights of adolescents (forthcoming). 16 See also general comment No. 12 (2009) on the right of the child to be heard (2009). 268
for the meaningful participation of children at the national and subnational levels. Participants in those mechanisms should be able to contribute freely and without fear of repression or ridicule and States parties should provide feedback to those who participated. In particular, States parties should consult with children who face difficulties in making themselves heard, including children in vulnerable situations. 53. The Committee recalls that “investment in the realization of the child’s right to be heard in all matters of concern to her or him and for her or his views to be given due consideration, is a clear and immediate legal obligation of States parties under the Convention … It also requires a commitment to resources and training.”17 This underlines the responsibility of States parties to ensure that there is funding to achieve the meaningful participation of children in all decisions affecting them. It recognizes the important role played by officials of the executive, independent ombudspersons for children, educational institutions, the media, civil society organizations, including children’s organizations, and legislatures in assuring children’s participation in relation to public budgets. 54. The Committee recognizes that budget transparency is a prerequisite for meaningful participation. Transparency means ensuring that user-friendly information is made publicly available in a timely manner in relation to the planning, enactment, execution and follow-up of budgets. This includes both quantitative budget data and relevant information about legislation, policies, programmes, the budget process timetable, motivation for spending priorities and decisions, outputs, outcomes and service delivery information. The Committee underlines the need for States parties to budget for and provide contextually appropriate materials, mechanisms and institutions to enable meaningful participation.18 55. To enable meaningful participation in the budget process, the Committee stresses the importance of ensuring that States parties have in place legislation and policies for freedom of information that include, or at a minimum do not exclude, children and child rights advocates from the right to access key budgetary documents such as prebudget statements, budget proposals, enacted budgets, midterm reports, in-year reports and audit reports. 56. The Committee recognizes that a number of States have experience in engaging children in meaningful participation in different parts of the budget process. It encourages States parties to share such experiences and identify good practices that are appropriate to their contexts.
17 See general comment No. 12, para. 135. 18 See article 13 (1) of the Convention.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
PRINCIPLES OF PUBLIC BUDGETING FOR CHILDREN’S RIGHTS
57. As established in section II above, the Committee underlines the fact that States parties are obliged to take measures within their budget processes to generate revenue and manage expenditures in a way that is sufficient to realize the rights of the child. The Committee recognizes that there are many ways to achieve sufficient resources for realizing children’s rights, including taking into account the general principles of the Convention and the budget principles of effectiveness, efficiency, equity, transparency and sustainability. States parties to the Convention are accountable for meeting their budgetary obligations to realize children’s rights. 58. The Committee recognizes that States have existing expertise and experience in applying the general principles of the Convention and the following budget principles to their budget processes. States parties are encouraged to share and exchange their good practices.
A. EFFECTIVENESS 59. States parties should plan, enact, execute and follow up in ways that lead to advances in child rights. States parties should invest in understanding the child rights situation in their context and formulate and implement legislation, policies and programmes that are strategically designed to overcome the challenges of realizing the rights of the child. States parties should constantly assess how budgets affect different groups of children and ensure that their budget decisions lead to the best possible outcomes for the largest number of children, paying special attention to children in vulnerable situations.
B. EFFICIENCY 60. Public resources dedicated to child-related policies and programmes should be managed in such a way as to ensure value for money and bearing in mind the obligation to respect, protect and fulfil children’s rights. Approved expenditures should be executed in line with the enacted budget. Goods and services to advance child rights should be procured and delivered transparently and on time, and be of appropriate quality. Furthermore, funds allocated to the rights of the child should not be wasted. States parties should make efforts to overcome institutional barriers that impede efficient spending. Monitoring, evaluation and auditing of public funds should provide checks and balances that promote sound financial management.
C. EQUITY 61. States parties shall not discriminate against any child or category of children through resource mobilization or the allocation or execution of public funds. Spending equitably does not always mean spending the same amount on each child, but rather making spending decisions that lead to substantive equality among children. Resources should
be fairly targeted to promote equality. States parties are obliged to remove all discriminatory barriers that children may face in accessing their rights.
D. TRANSPARENCY 62. States parties should develop and maintain public financial management systems and practices that are open to scrutiny, and information on public resources should be freely available in a timely manner. Transparency contributes to efficiency and combats corruption and mismanagement of public budgets, which in turn increases the public resources available to advance child rights. Transparency is also a prerequisite for enabling meaningful participation of the executive, legislatures and civil society, including children, in the budget process. The Committee emphasizes the importance of States parties actively promoting access to information about public revenues, allocations and spending related to children and adopting policies to support and encourage continuous engagement with legislatures and civil society, including children.
E. SUSTAINABILITY 63. The best interests of current and future generations of children should be given serious consideration in all budget decisions. States parties should mobilize revenues and manage public resources in such a way as to ensure the ongoing adoption of policies and delivery of programmes aimed at directly or indirectly realizing children’s rights. States parties may only take retrogressive measures in relation to children’s rights as outlined in paragraph 31 above.
IMPLEMENTATION
OF THE RIGHTS OF THE CHILD IN PUBLIC BUDGETS 64. In this section, the Committee provides more detailed guidance and recommendations on how to realize children’s rights in relation to each of the four stages of the public budget process: a) Planning; b) Enacting; c) Executing; d) Following up.
65. While focusing on national and subnational public budget processes in this section, the Committee stresses the obligation of States parties to also foster implementation of the Convention through international cooperation.19 Such cooperation should be made visible in the national and subnational budgets, where relevant. 19 See sect. II E above and art. 45 of the Convention.
BI A CK N D E X
269
66. The Committee also stresses the importance of effective cross-sectoral, interministerial, interdepartmental and inter-agency coordination and cooperation throughout the budget process to fully implement the Convention and its Optional Protocols. States parties should make resources available and should gear their information systems to sustain such coordination at the national and subnational levels.
c) Reviewing existing, or creating new, mechanisms to consult regularly with children throughout the budget year;
A. PLANNING
70. Legislation, policies and programmes related to fiscal issues, the budget process or specific rights of the child have a direct or indirect impact on children. States parties are required to take all possible measures to ensure that all legislation, policies and programmes are in accordance with the Convention and its Optional Protocols, reflect the realities of children, especially those in vulnerable situations, and do not harm children or prevent their rights from being realized.
1. ASSESSING THE SITUATION 67. Budget planning requires realistic assessments of the economic situation and of the extent to which existing legislation, policies and programmes sufficiently respect, protect and fulfil children’s rights. States need reliable, timely, accessible and comprehensive disaggregated information and data in reusable formats on the macroeconomic, budget and child rights situation, both current and projected. Such information is fundamental to creating legislation, policies and programmes to directly or indirectly target and advance the rights of the child. 68. In the planning of the budget, States parties should give detailed consideration to the situation of different groups of children, especially those in vulnerable situations, taking into account the past (at least the last 3 to 5 years), current and future situations (at least the next 5 to 10 years). To ensure access to reliable and useful information on the situation of children, States parties are urged to: a) Periodically review the mandates and resources of statistical bodies and systems for the collection, processing, analysis and dissemination of child-related demographics and other relevant data; b) Ensure that available information on the situation of children is disaggregated in useful ways considering different groups of children and the principle of nondiscrimination in article 2 of the Convention (see also sect. III A above); c) Make user-friendly information and disaggregated data on the situation of children available in a timely manner to public officials of the executive and members of the legislatures involved in budgeting at the national and subnational levels, as well as to civil society, including children; d) Establish and maintain a database of all policies and resources affecting children so that those involved in implementing and monitoring the corresponding programmes and services have ongoing access to objective and reliable information. 69. States parties should investigate past and potential impacts of budget decisions on children, by: a) Conducting audits, evaluations and studies of the impact on children of past public revenue collection, budget allocations and expenditures; b) Consulting with children, their caregivers and those working for their rights, and giving the results serious consideration in budget decisions;
d) Using new technologies to support effective budget planning in relation to children’s rights. 2. LEGISLATION, POLICIES AND PROGRAMMES
71. The Committee recognizes the fact that macroeconomic and fiscal legislation, policies and programmes can have an indirect impact on children, their guardians and caregivers who may, for example, be affected by labour legislation or public debt management. States parties should conduct child rights impact assessments of all legislation, policies and programmes, including those of a macroeconomic and fiscal nature, in order to ensure that they do not undermine the realization of children’s rights. 72. Legislation, policies and programmes relevant to children should be part of decision-making and operations of international development cooperation and States parties’ memberships of international organizations. A State engaged with international development or finance cooperation should take all measures necessary to ensure that such cooperation is carried out in accordance with the Convention and its Optional Protocols. 73. The Committee emphasizes the importance of States parties making cost estimates of proposed legislation, policies and programmes that affect children, in order to ascertain the level of financial resources needed and to enable budget planners and the relevant decision makers in the executive and the legislature to make informed decisions on the resources needed for their implementation. 3. MOBILIZING RESOURCES 74. The Committee recognizes the importance of States’ legislation, policies and systems in relation to revenue mobilization and borrowing to sustain available resources for the rights of the child. States parties should take concrete sustainable measures to mobilize domestic resources at the national and subnational levels, such as through taxes and non-tax revenues. 75. States parties shall seek international cooperation if the available resources to realize the rights of children are insufficient. Such cooperation shall take the Convention and its Optional Protocols into account both on the part of the recipient and the donor States. The Committee underlines the fact that international and regional cooperation for the realization of children’s rights can include mobilization of resources to targeted programmes,
U PV EDR A TED SION as well as measures relating to taxation, combating tax evasion, debt management, transparency and other issues. 76. The mobilization of resources for public spending on child rights should itself be conducted in a manner that adheres to the budget principles set out in section IV. A lack of transparency in resource mobilization systems can lead to inefficiencies, mismanagement of public finances and corruption. This in turn can lead to insufficient resources being available to spend on the rights of the child. The different tax regimes that do not take into account the ability of families to pay can lead to an inequity in resource mobilization. This can place disproportionate revenue burdens on people with already scarce financial resources, some of whom will be caring for children. 77. States parties should mobilize the full extent of their available resources in a way that is consistent with their obligations of implementation, by: a) Conducting child rights impact assessments of legislation and policies pertaining to resource mobilization; b) Reviewing and ensuring that policies and formulas for the division of revenue, both vertical (between different levels of the State) and horizontal (between units at the same level), support and enhance equality among children in different geographical regions; c) Reviewing and strengthening their capacity to formulate and manage tax legislation, policies and systems, including the signing of agreements between countries to avoid tax evasion; d) Safeguarding the resources available to advance children’s rights by preventing wastage of resources due to inefficiency or mismanagement and combating corrupt or illicit practices at all levels; e) Applying the budget principles set out in section IV in all resource mobilization strategies; f) Ensuring that their sources of revenue, spending and liabilities lead to the realization of children’s rights for current and future generations. 78. The Committee recognizes that sustainable debt management by States, on behalf of creditors and lenders, can contribute to mobilizing resources for the rights of the child. Sustainable debt management includes having in place transparent legislation, policies and systems with clear roles and responsibilities for borrowing and lending, as well as managing and monitoring debt. The Committee also recognizes that long-term unsustainable debt can be a barrier to a State’s ability to mobilize resources for children’s rights, and may lead to taxes and user fees that impact negatively on children. Child rights impact assessments should therefore be carried out also in relation to debt agreements. 79. Debt relief can increase States’ ability to mobilize resources for the rights of the child. When States parties receive debt relief, children’s rights shall be given serious consideration in decisions regarding the allocation of resources that become available as a result of such relief. 80. States parties shall protect children’s rights when making decisions related to mobilizing resources through
natural resource extraction. Domestic and international agreements regarding such resources, for example, should take into consideration the impacts they might have on current and future generations of children. 4. FORMULATING BUDGETS 81. Pre-budget statements and budget proposals provide powerful vehicles for States to translate their commitments to the rights of the child into concrete priorities and plans at the national and subnational levels. States parties should prepare their budget-related statements and proposals in such a way as to enable effective comparisons and monitoring of budgets relating to children, by: a) Adhering to internationally agreed budget classification systems such as functional (sector or subsector), economic (current and capital expenses), administrative (ministry, department, agency) and programme breakdowns (if programme-based budgeting is used), to the extent that they are compliant with children’s rights; b) Reviewing their administrative guidelines and procedures for the formulation of pre-budget statements and budget proposals, such as standardized worksheets and instructions regarding which stakeholders to consult, in order to ensure that they are in line with the present general comment; c) Further reviewing their classification systems to ensure that they include budget lines and codes that at a minimum disaggregate budget information in line with all the categories listed in paragraph 84 below; d) Ensuring that their budget lines and codes correspond at the national and subnational levels; e) Publishing pre-budget statements and budget proposals that are user-friendly, timely and accessible to legislatures, children and child rights advocates. 82. Pre-budget statements and budget proposals convey essential information about how a State plans to meet its child rights obligations. States parties should use their prebudget statements and budget proposals to: a) Explain how legislation, policies and programmes affecting children will be funded and implemented; b) Identify which budget allocations directly target children; c) Identify which budget allocations indirectly affect children; d) Present findings from evaluations and audits regarding the impact of past budgets on children; e) Detail recent or upcoming measures taken to advance children’s rights; f) Present financial data and explanatory text regarding the past, present and forecasted resources available for spending on the rights of the child, as well as actual expenditures; g) Set performance targets linking child-related programme goals to budget allocations and actual expenditures, to allow monitoring of outcomes and impacts on children, including those in vulnerable situations.
BI A CK N D E X
271
U PV EDR A TED SION 83. Pre-budget statements and budget proposals are important sources of information for child rights-related organizations, children and their caregivers. States parties should enhance their accountability to people within their jurisdictions by producing such user-friendly and accessible information and disseminating it to the public. 84. Clear budget classification systems provide a basis for States and other entities to monitor how budget allocations and actual expenditures affecting children are managed in relation to the budget principles. This calls for budget lines and codes which, at a minimum, disaggregate all planned, enacted, revised and actual expenditures that directly affect children, by: a) Age, recognizing that the definition of age cohorts will differ from State to State; b) Gender; c) Geographical area, for example, by subnational unit; d) Current, and possible future, categories of children in vulnerable situations, taking into consideration article 2 of the Convention (see also sect. III A); e) Source of revenue, be it national, subnational, regional or international; f) Responsible units, such as departments, ministries or agencies at the national and subnational levels. 85. In their budget proposals, parties should specify any child-related programmes that they propose to outsource, or have already outsourced, to the private sector.20 86. The Committee notes that those States that have advanced furthest in making children’s rights visible in their budgets tend to apply a programme-based approach to budgeting. States parties are urged to share experiences of this approach and consider applying and adapting it to their contexts.
B. ENACTING
review and, where necessary, request amendments to budget proposals, to ensure that they advance the rights of the child in a way that is consistent with the general principles of the Convention and the budget principles. 90. States parties should contribute so that members of legislatures are adequately prepared to analyse and debate the impact of budget proposals on all children prior to enacting budget legislation, by seeing that national and subnational legislatures, including relevant legislative committees: a) Have access to information about the situation of children that is easy to understand and use; b) Have clear explanations from the executive on how legislation, policies and programmes directly or indirectly affecting children are translated into budget lines; c) Have sufficient time within the budget process to receive the budget proposal, review and debate it, and suggest amendments related to children before the enactment; d) Have the capacity to independently undertake or commission analyses that highlight the implications of budget proposals on the rights of the child; e) Are able to hold hearings regarding the budget proposal with stakeholders within the State, including civil society, child advocates and children themselves; f) Have the necessary resources, for example through a legislatures’ budget office, to undertake oversight activities such as those outlined in (a) to (e) above. 91. States parties should produce and disseminate national and subnational budget documents during the enactment stage that: a) Classify budget information in a way that is consistent and easy to understand;
1. LEGISLATORS’ SCRUTINY OF BUDGET PROPOSALS 87. The Committee underlines the importance of legislators at the national and subnational levels having access to detailed, user-friendly information about the situation of children and a clear understanding of how budget proposals aim to improve children’s well-being and advance their rights.
b) Facilitate analysis and monitoring by being compatible with other budget proposals and expenditure reports; c) Include publications or budget summaries that are accessible to children and child rights advocates, legislatures and civil society. 2. ENACTMENT OF BUDGET BY LEGISLATURES
88. Legislatures at the national and subnational levels also require adequate time, resources and autonomy to scrutinize budget proposals from a child rights perspective and, where necessary, to undertake or commission analyses or research to shed light on the implications of budget allocations for different groups of children.
92. The Committee underlines the need for budgets enacted by the legislature to be classified in such a way as to enable comparisons between planned and actual expenditures and the monitoring of budget implementation in relation to child rights.
89. For the oversight role of legislatures to serve the best interests of children, members of legislative bodies and their committees should have the authority to question,
93. The enacted budget is regarded as a public document that is essential not only to the State and legislatures at the national and subnational levels, but should also be accessible to civil society, including children and child rights advocates.
20 See general comment No. 16 (2013) on State obligations regarding
the impact of the business sector on children’s rights, para. 25.
272
BACK
KEYWORDS INDEX
U PV EDR A TED SION
C. EXECUTING 1. TRANSFER AND SPENDING OF AVAILABLE RESOURCES 94. States parties should adopt and maintain transparent and efficient public finance mechanisms and systems to ensure value for money when goods and services are purchased to advance child rights. 95. The Committee underlines the fact that States parties have a duty to uncover and remedy the root causes of ineffective and inefficient public spending, for example, poor quality of goods or services, inadequate financial management or procurement systems, leakages, untimely transfers, unclear roles and responsibilities, poor absorptive capacity, weak budget information systems and corruption. When States parties waste or mismanage resources aimed at advancing child rights, they have an obligation to explain why this has occurred and show how the causes have been addressed. 96. During the budget year, policies and programmes aimed at children may not reach all intended beneficiaries as planned or may lead to unintended results. States parties should monitor the outcomes of expenditures during the execution stage so that they can intervene and take rapid corrective action when necessary. 2. IN-YEAR REPORTING ON THE BUDGET
a) Making comparisons between what was budgeted and what was actually spent at different administrative levels across different social sectors; b) Publishing a comprehensive midterm report that covers actual expenditures made, revenues mobilized, and debt incurred half way into the budget year; c) Publishing more frequent, for example monthly or quarterly, in-year reports. 102. States parties are obliged to establish public accountability mechanisms that allow civil society, including children, to monitor outcomes of public spending. 103. States parties should have internal control and audit processes in place to ensure that rules and procedures are followed in relation to actual expenditures related to children’s rights, and that accounting and reporting processes are adhered to.
D. FOLLOW-UP
97. States parties should regularly monitor and report on budgets relating to children in a manner that enables States and oversight bodies to track progress in advancing children’s rights as set out in the enacted budget. 98. The Committee emphasizes the importance of budget reports being made publicly available in a timely manner and highlighting deviations between the enacted, revised and actual revenues and expenditures in relation to legislation, policies and programmes affecting children. 99. The Committee underlines the fact that States parties should use budget classification systems that allow expenditures related to the rights of the child to be reported, tracked and analysed. 3. EXECUTING THE BUDGET 100. States parties should monitor and analyse the revenue collection, reach and outputs of actual expenditures for different groups of children during the budget year and from year to year, for example in terms of the availability, quality, accessibility and equitable distribution of services. States parties are urged to ensure that resources and capacity are in place to conduct such monitoring and analyses, including of services outsourced to the private sector. 101. States parties should monitor and publicly report on the implementation of enacted budgets on a regular basis, including:
1. YEAR-END REPORTS AND EVALUATIONS 104. Year-end budget reports allow States to account, at the national and subnational levels, for their revenue, borrowing, international cooperation and actual expenditures in relation to the rights of the child. They provide a basis for civil society and legislatures to scrutinize the past year’s budget performance and when necessary, raise concerns about actual expenditures on children and child rights-related programmes. 105. The Committee emphasizes that States parties, in their year-end reports, should provide comprehensive information on all revenue collected and actual expenditures that affect children’s rights. States parties should release user-friendly reports to national and subnational legislatures and make year-end reports and evaluations accessible and publicly available in a timely manner. 106. Evaluations and other types of analyses of budgets undertaken by the State and independent evaluation bodies can offer valuable insight into the impact of revenue collection and actual spending on the situation of different groups of children, especially those in vulnerable situations. States parties should undertake and encourage regular evaluations and analyses of the impact of budgets on the situation of children, by: a) Allocating sufficient financial and human resources to regularly undertake such evaluations and analyses;
BI A CK N D E X
273
U PV EDR A TED SION b) Rigorously assessing and considering the findings of such evaluations and analyses throughout the budget process and reporting back on decisions taken in relation to them; c) Establishing and strengthening independent evaluation bodies, such as research institutes, to conduct evaluations of the effectiveness, efficiency, equity, transparency and sustainability of actual expenditures related to the rights of the child; d) Ensuring that civil society, including children, can make contributions to the evaluation and analyses, for example, through child rights impact assessments. 2. AUDITS
b) Ensuring that State officials have the capacity to respond in an informed way to the findings of civil society and independent bodies that monitor and audit public expenditures relevant to children. 111. States parties should use audits of previous public resource mobilization, budget allocations and expenditures related to child rights to inform the next planning stage of the budget process.
DISSEMINATION OF THE PRESENT GENERAL COMMENT
107. Supreme audit institutions play an essential role in the budget process by verifying whether public revenue collection and spending takes place in accordance with the enacted budget. Audits may investigate the efficiency or effectiveness of expenditures and focus on specific sectors, government structures of the State or cross-cutting issues. Dedicated audits in relation to the rights of the child can assist States in evaluating and improving public revenue mobilization and spending on children. States parties should make the audit reports accessible and publicly available in a timely manner.
112. The Committee recommends that States parties widely disseminate the present general comment to all its government branches, levels and structures and to civil society, including children and their caregivers, as well as to development cooperation entities, academia, the media and relevant parts of the private sector.
108. The Committee underlines the fact that supreme audit institutions should be independent from the State and should have a mandate to access the information and resources needed to audit and report on child-related budgets in an independent, accountable and transparent manner.
114. Events should be held to share best practices related to the general comment and to train all concerned professionals and technical staff on its content.
109. States parties should support the oversight role of the supreme audit institutions in relation to public revenue collection and spending on the rights of the child by: a) Presenting comprehensive annual accounts to the supreme audit institutions in a timely manner; (b) Ensuring that resources are available for the supreme audit institutions to undertake audits in relation to the rights of the child;
113. States parties should translate the general comment into relevant languages and make child appropriate versions available.
115. The Committee encourages all of the above stakeholders to share good practices in relation to the content of the general comment. 116. States parties should include information in their periodic reporting to the Committee on the challenges they face and the measures they have taken to apply the present general comment in their budgets and budget processes.
(c) Providing public responses to audits related to the impact of actual expenditures on children’s rights, including how the State addresses audit findings and recommendations; d) Ensuring that State officials have the capacity to appear before committees of the legislature to respond to concerns raised in audit reports pertaining to child rights. 110. Civil society, including children, can make important contributions to the audit of public expenditures. States parties are encouraged to support and empower civil society to participate in the evaluation and audit of actual expenditures relating to children’s rights, by: a) Establishing public accountability mechanisms for this purpose and reviewing them regularly to ensure that they are accessible, participatory and effective;
274
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
275
U PV EDR A TED SION
276
BACK
KEYWORDS INDEX
number 20
U PV EDR A TED SION
IN T R O DUC T I ON 1. The Convention on the Rights of the Child defines a child as every human being below the age of 18 years unless under the law applicable to the child majority is attained earlier, and emphasizes that States should respect and ensure the rights embodied in the Convention to each child within their jurisdiction without discrimination of any kind. While the Convention recognizes the rights of all persons under 18 years, the implementation of rights should take account of children’s development and their evolving capacities. Approaches adopted to ensure the realization of the rights of adolescents differ significantly from those adopted for younger children. 2. Adolescence is a life stage characterized by growing opportunities, capacities, aspirations, energy and creativity, but also significant vulnerability. Adolescents are agents of change and a key asset and resource with the potential to contribute positively to their families, communities and countries. Globally, adolescents engage positively in many spheres, including health and education campaigns, family support, peer education, community development initiatives, participatory budgeting and creative arts, and make contributions towards peace, human rights, environmental sustainability and climate justice. Many adolescents are at the cutting edge of the digital and social media environments, which form an increasingly central role in their education, culture and social networks, and hold potential in terms of political engagement and monitoring accountability. 3. The Committee observes that the potential of adolescents is widely compromised because States parties do not recognize or invest in the measures needed for them to enjoy their rights. Data disaggregated by age, sex and disability are not available in most countries to inform policy, identify gaps and support the allocation of appropriate resources for adolescents. Generic policies designed for children or young people often fail to address adolescents in all their diversity and are inadequate to guarantee the realization of their rights. The costs of inaction and failure are high: the foundations laid down during adolescence in terms of emotional security, health, sexuality, education, skills, resilience and understanding of rights will have profound implications, not only for their individual optimum development, but also for present and future social and economic development. 4. In the present general comment, the Committee provides guidance to States on the measures necessary to ensure the realization of the rights of children during adolescence, cognizant also of the 2030 Agenda for Sustainable Development. It highlights the importance of a human rights-based approach that includes recognition and respect for the dignity and agency of adolescents; their empowerment, citizenship and active participation in their 278
own lives; the promotion of optimum health, well-being and development; and a commitment to the promotion, protection and fulfilment of their human rights, without discrimination. 5. The Committee recognizes that adolescence is not easily defined, and that individual children reach maturity at different ages. Puberty occurs at different ages for boys and girls, and different brain functions mature at different times. The process of transitioning from childhood to adulthood is influenced by context and environment, as reflected in the wide variation in cultural expectations of adolescents in national legislations, which afford different thresholds for entry into adult activities, and across international bodies, which employ a variety of age ranges to define adolescence. The present general comment does not seek, therefore, to define adolescence, but instead focuses on the period of childhood from 10 years until the 18th birthday to facilitate consistency in data collection.1 6. The Committee notes that several of its general comments have a particular resonance for adolescents, notably those relating to adolescent health and development, HIV/ AIDS, eradicating practices that are harmful to women and children, unaccompanied and separated children and juvenile justice. The Committee emphasizes the particular significance for adolescents of the recommendations arising from the day of general discussion on digital media and children’s rights. The present general comment has been developed to provide an overview on how the Convention in its entirety needs to be understood and implemented in respect of all adolescents and should be read together with other general comments and with documents arising from the day of general discussion.
OBJECTIVES 7. The objectives of the present general comment are: a) To provide States with guidance on the legislation, policies and services needed to promote comprehensive adolescent development consistent with the realization of their rights; b) To raise awareness of the opportunities afforded by and challenges faced during adolescence; c) To enhance understanding of and respect for the evolving capacities of adolescents and the implications for the realization of their rights; 1 See www.who.int/maternal_child_adolescent/topics/adolescence/dev/en/.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
d) To strengthen the case for greater visibility and awareness of adolescents and for investment to enable them to realize their rights throughout the course of their lives.
childhood interventions and experiences facilitate optimal development as young children become adolescents.2 However, any investment in young people risks being wasted if their rights throughout adolescence do not also receive adequate attention. Furthermore, positive and supportive opportunities during adolescence can be used to offset some of the consequences caused by harm suffered during early childhood, and build resilience to mitigate future damage. The Committee therefore underlines the importance of a life-course perspective.
CHALLENGING ENVIRONMENT
TH E C ASE F OR A FOCUS ON ADOLESCENTS
8. The Committee draws States parties’ attention to the powerful case for a focus on adolescents to promote the realization of their rights, strengthen their potential contribution to positive and progressive social transformation and overcome the challenges they face in the transition from childhood to adulthood in an increasingly globalized and complex world. 9. Adolescents are on a rapid curve of development. The significance of the developmental changes during adolescence has not yet been as widely understood as that which occurs in early years. Adolescence is a unique defining stage of human development characterized by rapid brain development and physical growth, enhanced cognitive ability, the onset of puberty and sexual awareness and newly emerging abilities, strengths and skills. Adolescents experience greater expectations surrounding their role in society and more significant peer relationships as they transition from a situation of dependency to one of greater autonomy. 10. As they move through their second decade, children begin to explore and forge their own individual and community identities on the basis of a complex interaction with their own family and cultural history, and experience the creation of an emergent sense of self, often expressed through language, arts and culture, both as individuals and through association with their peers. For many, that process takes place around and is significantly informed and influenced by their engagement with the digital environment. The process of construction and expression of identity is particularly complex for adolescents as they create a pathway between minority and mainstream cultures.
RECOGNIZING ADOLESCENCE AS PART OF THE LIFE COURSE 11. In order to ensure the optimum development of every child throughout childhood, it is necessary to recognize the impact that each period of life has on subsequent stages. Adolescence is a valuable period of childhood in its own right but is also a critical period of transition and opportunity for improving life chances. Positive early
12. Reaching adolescence can mean exposure to a range of risks, reinforced or exacerbated by the digital environment, including substance use and addiction, violence and abuse, sexual or economic exploitation, trafficking, migration, radicalization or recruitment into gangs or militias. As they approach adulthood, adolescents need suitable education and support to tackle local and global challenges, including poverty and inequality, discrimination, climate change and environmental degradation, urbanization and migration, ageing societies, pressure to perform in school and escalating humanitarian and security crises. Growing up in more heterogeneous and multi-ethnic societies, as a consequence of increased global migration, also requires greater capacities for understanding, tolerance and coexistence. Investment is needed in measures to strengthen the capacities of adolescents to overcome or mitigate those challenges, address the societal drivers serving to exclude and marginalize them and equip them to face challenging and changing social, economic and digital environments.
PERIOD OF HEALTH RISKS 13. Although adolescence is generally characterized by relatively low mortality compared to other age groups, the risk of death and disease during the adolescent years is real, including from preventable causes such as childbirth, unsafe abortions, road traffic accidents, sexually transmitted infections, including HIV, interpersonal injuries, mental ill health and suicide, all of which are associated with certain behaviours and require cross-sectoral collaboration.
GENERAL PRINCIPLES OF THE CONVENTION
14. The general principles of the Convention provide the lens through which the process of implementation should be viewed, and act as a guide for determining the measures needed to guarantee the realization of the rights of children during adolescence.
2 See Committee on the Rights of the Child general comment No. 7 (2005) on implementing child rights in early childhood, para. 8.
BI A CK N D E X
279
U PV EDR A TED SION
A. RIGHT TO DEVELOPMENT
POSITIVE AND HOLISTIC APPROACH 15. The Committee emphasizes the importance of valuing adolescence and its associated characteristics as a positive developmental stage of childhood. It regrets the widespread negative characterization of adolescence leading to narrow problem-focused interventions and services, rather than a commitment to building optimum environments to guarantee the rights of adolescents and support the development of their physical, psychological, spiritual, social, emotional, cognitive, cultural and economic capacities. 16. States, together with non-State actors, through dialogue and engagement with adolescents themselves, should promote environments that acknowledge the intrinsic value of adolescence and introduce measures to help them to thrive, explore their emerging identities, beliefs, sexualities and opportunities, balance risk and safety, build capacity for making free, informed and positive decisions and life choices, and successfully navigate the transition into adulthood. An approach is required that builds on strengths and recognizes the contribution that adolescents can bring to their lives and those of others, while addressing the barriers that inhibit those opportunities. 17. Factors known to promote the resilience and healthy development of adolescents include: (a) strong relationships with and support from the key adults in their lives; (b) opportunities for participation and decisionmaking; (c) problem-solving and coping skills; (d) safe and healthy local environments; (e) respect for individuality; and (f) opportunities for building and sustaining friendships. The Committee emphasizes that opportunities for adolescents to build and benefit from such social assets will enhance their capacities to contribute to the realization of their rights, including by maintaining good physical and mental health, avoiding risky behaviour, recovering from adversity, succeeding in school, showing tolerance, creating friendships and exercising leadership.
RESPECT FOR EVOLVING CAPACITIES 18. Article 5 of the Convention requires that parental direction and guidance be provided in a manner consistent with the evolving capacities of the child. The Committee defines evolving capacities as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding3 and increasing levels of agency to take responsibility and exercise their rights. The Committee has argued that the more a child knows and understands, the more his or her parents will have to transform direction and guidance into reminders and gradually to an exchange on an equal footing.4 19. The Committee emphasizes that the right to exercise increasing levels of responsibility does not obviate States’ obligations to guarantee protection.5 Gradual emergence 3 Ibid., para. 17. 4 See general comment No. 12 (2009) on the right of the child to be heard, para. 84. 5 See, e.g., articles 32-39 of the Convention. 280
from the protection of the family or another care environment, together with relative inexperience and lack of power, can render adolescents vulnerable to violations of their rights. The Committee stresses that engaging adolescents in the identification of potential risks and the development and implementation of programmes to mitigate them will lead to more effective protection. By being guaranteed the right to be heard, to challenge rights violations and to seek redress, adolescents are enabled to exercise agency progressively in their own protection. 20. In seeking to provide an appropriate balance between respect for the evolving capacities of adolescents and appropriate levels of protection, consideration should be given to a range of factors affecting decision-making, including the level of risk involved, the potential for exploitation, understanding of adolescent development, recognition that competence and understanding do not necessarily develop equally across all fields at the same pace and recognition of individual experience and capacity.
B. NON-DISCRIMINATION 21. The Committee has identified multiple forms of discrimination, many of which have particular implications in adolescence and necessitate an intersectional analysis and targeted holistic measures.6 Adolescence itself can be a source of discrimination. During this period, adolescents may be treated as dangerous or hostile, incarcerated, exploited or exposed to violence as a direct consequence of their status. Paradoxically, they are also often treated as incompetent and incapable of making decisions about their lives. The Committee urges States to ensure that all of the rights of every adolescent boy and girl are afforded equal respect and protection and that comprehensive and appropriate affirmative action measures are introduced in order to diminish or eliminate conditions that result in direct or indirect discrimination against any group of adolescents on any grounds.7 States are reminded that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose that is legitimate under the Convention.8
C. BEST INTERESTS 22. The right of the child to have his or her best interests taken into account as a primary consideration is a substantive right, an interpretative legal principle and a rule of procedure, and it applies to children both as individuals and as a group.9 All measures of implementation of the Convention, including legislation, policies, economic and social planning, decision-making and budgetary decisions, should follow procedures that ensure that the best interests of the child, including adolescents, are taken as a primary consideration in all actions concerning them. In the light of its general comment No. 14 (2013) on the right 6 See www2.ohchr.org/english/issues/women/rapporteur/ docs/15YearReviewofVAWMandate.pdf. 7 See general comment No. 5 (2003) on general measures of implementation of the Convention, para. 12. 8 See Human Rights Committee general comment No. 18 (1989) on nondiscrimination, para. 147. 9 See Committee on the Rights of the Child general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, para. 6.
BACK
KEYWORDS INDEX
U PV EDR A TED SION of the child to have his or her best interests taken as a primary consideration, the Committee stresses that, when determining best interests, the child’s views should be taken into account, consistent with their evolving capacities10 and taking into consideration the child’s characteristics. States parties need to ensure that appropriate weight is afforded to the views of adolescents as they acquire understanding and maturity.
D. RIGHT TO BE HEARD AND TO PARTICIPATION 23. In accordance with article 12 of the Convention, States parties should introduce measures to guarantee adolescents the right to express views on all matters of concern to them, in accordance with their age and maturity, and ensure they are given due weight, for example, in decisions relating to their education, health, sexuality, family life and judicial and administrative proceedings. States should ensure that adolescents are involved in the development, implementation and monitoring of all relevant legislation, policies, services and programmes affecting their lives, at school and at the community, local, national and international levels.11 The online environment provides significant emerging opportunities for strengthening and expanding their engagement. The measures should be accompanied by the introduction of safe and accessible complaint and redress mechanisms with the authority to adjudicate claims made by adolescents, and by access to subsidized or free legal services and other appropriate assistance. 24. The Committee emphasizes the importance of participation as a means of political and civil engagement through which adolescents can negotiate and advocate for the realization of their rights, and hold States accountable. States should adopt policies to increase opportunities for political participation, which is instrumental in the development of active citizenship. Adolescents can connect with peers, engage in political processes and increase their sense of agency to make informed decisions and choices, and therefore need to be supported in forming organizations through which they can participate in a variety of means, including digital media. If States decide to lower the voting age to under 18 years, they should invest in measures that support adolescents to understand, recognize and fulfil their role as active citizens, including through citizenship and human rights education and by identifying and addressing barriers to their engagement and participation. 25. The Committee notes that adults’ understanding and awareness of adolescents’ right to participation is important for adolescents’ enjoyment of that right, and it encourages States to invest in training and awarenessraising, particularly for parents and caregivers, professionals working with and for adolescents, policymakers and decision makers. Support is needed to enable adults to become mentors and facilitators so that adolescents can take greater responsibility for their own lives and the lives of those around them. 10 See general comment No. 12, paras. 70-74, and No. 14, paras. 43-45. 11 See general comment, No. 12, para. 27.
ADOLESCENTS
REQUIRING PARTICULAR ATTENTION 26. Certain groups of adolescents may be particularly subject to multiple vulnerabilities and violations of their rights, including discrimination and social exclusion. All measures taken in respect of legislation, policies and programmes focused on adolescents should take into consideration intersecting violations of rights and the compounded negative effects on the adolescents concerned.
GIRLS 27. During adolescence, gender inequalities become more significant. Manifestations of discrimination, inequality and stereotyping against girls often intensify, leading to more serious violations of their rights, including child and forced marriage, early pregnancy, female genital mutilation, gender-based physical, mental and sexual violence, abuse, exploitation and trafficking.12 Cultural norms ascribing lower status to girls can increase the likelihood of confinement to the home, lack of access to secondary and tertiary education, limited opportunities for leisure, sport, recreation and income generation, lack of access to cultural life and the arts, burdensome domestic chores and childcare responsibilities. In many countries, girls report lower levels of health and life satisfaction indicators than boys, a difference that gradually increases with age. 28. States need to invest in proactive measures to promote the empowerment of girls, challenge patriarchal and other harmful gender norms and stereotyping and legal reforms in order to address direct and indirect discrimination against girls, in cooperation with all stakeholders, including civil society, women and men, traditional and religious leaders and adolescents themselves. Explicit measures are needed in all laws, policies and programmes to guarantee the rights of girls on an equal basis with boys. 12 See A/HRC/26/22, para. 21.
BI A CK N D E X
281
U PV EDR A TED SION
BOYS 29. Traditional concepts of masculinity and gender norms linked to violence and dominance can compromise boys’ rights. These include the imposition of harmful initiation rites, exposure to violence, gangs, coercion into militia, extremist groups and trafficking. The denial of their vulnerability to physical and sexual abuse and exploitation also poses pervasive and significant barriers to boys gaining access to sexual and reproductive health information, goods and services, and a consequent lack of protective services. 30. The Committee urges States to introduce measures to address such rights violations, and encourages them to challenge negative perceptions of boys, promote positive masculinities, overcome cultural values based on machismo and promote greater recognition of the gender dimension of the abuses they experience. States should also recognize the importance of engaging with boys and men, as well as girls and women, in all measures introduced to achieve gender equality.
ADOLESCENTS WITH DISABILITIES 31. The Committee has previously highlighted the widespread prejudice, exclusion, social isolation and discrimination faced by many children with disabilities.13 Adolescents with disabilities are, in many States, commonly excluded from opportunities available to other adolescents. They can be barred from participating in social, cultural and religious rites of passage. Significant numbers are denied access to secondary or tertiary education or vocational training, and consequent acquisition of the social, educational and economic skills necessary for future employment and freedom from poverty. They are widely denied access to sexual and reproductive health information and services and may be subjected to forced sterilization or contraception, which is in direct violation of their rights and can amount to torture or ill-treatment.14 Adolescents with disabilities are disproportionately vulnerable to physical and sexual violence, as well as child or forced marriage, and are routinely denied access to justice or redress.15 32. States parties should introduce measures to overcome such barriers, guarantee equal respect for the rights of adolescents with disabilities, promote their full inclusion and facilitate effective transitions from adolescence to adulthood, consistent with article 23 of the Convention and the recommendations in general comment No. 9 (2006) on the rights of children with disabilities. Adolescents with disabilities should, in addition, be provided with opportunities for supported decision-making in order to facilitate their active participation in all matters concerning them.
13 See general comment No. 9 (2006) on the rights of children with disabilities, paras. 8-10. 14 See A/HRC/22/53. 15 See A/66/230, paras. 44-49. 282
LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX ADOLESCENTS 33. Adolescents who are lesbian, gay, bisexual, transgender and intersex commonly face persecution, including abuse and violence, stigmatization, discrimination, bullying, exclusion from education and training, as well as a lack of family and social support, or access to sexual and reproductive health services and information.16 In extreme cases, they face sexual assault, rape and even death. These experiences have been linked to low self-esteem, higher rates of depression, suicide and homelessness.17 34. The Committee emphasizes the rights of all adolescents to freedom of expression and respect for their physical and psychological integrity, gender identity and emerging autonomy. It condemns the imposition of socalled “treatments” to try to change sexual orientation and forced surgeries or treatments on intersex adolescents. It urges States to eliminate such practices, repeal all laws criminalizing or otherwise discriminating against individuals on the basis of their sexual orientation, gender identity or intersex status and adopt laws prohibiting discrimination on those grounds. States should also take effective action to protect all lesbian, gay, bisexual, transgender and intersex adolescents from all forms of violence, discrimination or bullying by raising public awareness and implementing safety and support measures.
MINORITY AND INDIGENOUS ADOLESCENTS 35. The inadequate attention paid to and the insufficient respect shown for the cultures, values and world vision of adolescents from minority and indigenous groups can lead to discrimination, social exclusion, marginalization and non-inclusion in public spaces. This increases the vulnerability of minority and indigenous adolescents to poverty, social injustice, mental health issues, including disproportionately high suicide rates, poor educational outcomes and high levels of detention within the criminal justice system. 36. The Committee urges States parties to introduce measures to support adolescents from minority and indigenous communities so that they can enjoy their cultural identities and build on the strengths of their cultures to become active contributors to family and community life, paying particular attention to the rights of adolescent girls. In so doing, States should address the comprehensive recommendations contained in the Committee’s general comment No. 11 (2009) on indigenous children and their rights under the Convention.
16 See statement dated 13 May 2015 by the Committee of the Rights of the Child and other United Nations and regional human rights mechanisms, available from www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=15941&LangID=E. 17 Ibid.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
GENERAL MEASURES
DEFINITION OF THE CHILD
OF IMPLEMENTATION
37. In accordance with general comments No. 5 (2003) on general measures of implementation of the Convention (arts. 4, 42 and 44, para. 6) and No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4), the Committee draws attention to States parties’ obligations to implement the following measures to establish the framework for the realization of the rights of children during adolescence. The experience and perspectives of adolescents themselves should be fully recognized and taken seriously in the development of all such measures, including: a) Comprehensive and multisectoral national strategies rooted in the Convention, with a dedicated focus on adolescents, to address the structural social and economic roots underlying the rights violations adolescents face and ensure a coordinated approach across government ministries; b) Monitoring implementation to ensure that the rights of adolescents are respected in legislation, policy and services; c) Collecting data disaggregated at a minimum by age, sex, disability, ethnicity and socioeconomic condition, to render the lives of adolescents visible, the Committee recommends that States agree on common indicators against which to monitor progress in the implementation of adolescents’ rights; d) Transparent budgetary commitments to ensure that adolescents are duly considered when balancing competing spending priorities and complying with the principles of sufficiency, effectiveness, efficiency and equality; e) Training for all professionals working with and for adolescents on the Convention and its associated obligations, with a focus on the competencies needed to work with adolescents in accordance with their evolving capacities; f) Dissemination of accessible information about children’s rights and how to exercise them through, inter alia, the school curriculum, the media, including digital media, and public information materials, making particular efforts to reach out to adolescents in marginalized situations.
38. The Convention prohibits any gender-based discrimination, and age limits should be equal for girls and boys. 39. States should review or introduce legislation recognizing the right of adolescents to take increasing responsibility for decisions affecting their lives. The Committee recommends that States introduce minimum legal age limits, consistent with the right to protection, the best interests principle and respect for the evolving capacities of adolescents. For example, age limits should recognize the right to make decisions in respect of health services or treatment, consent to adoption, change of name or applications to family courts. In all cases, the right of any child below that minimum age and able to demonstrate sufficient understanding to be entitled to give or refuse consent should be recognized. The voluntary and informed consent of the adolescent should be obtained whether or not the consent of a parent or guardian is required for any medical treatment or procedure. Consideration should also be given to the introduction of a legal presumption that adolescents are competent to seek and have access to preventive or time-sensitive sexual and reproductive health commodities and services. The Committee emphasizes that all adolescents have the right to have access to confidential medical counselling and advice without the consent of a parent or guardian, irrespective of age, if they so wish. This is distinct from the right to give medical consent and should not be subject to any age limit.18 40. The Committee reminds States parties of the obligation to recognize that persons up to the age of 18 years are entitled to continuing protection from all forms of exploitation and abuse. It reaffirms that the minimum age limit should be 18 years for marriage, recruitment into the armed forces, involvement in hazardous or exploitative work and the purchase and consumption of alcohol and tobacco, in view of the degree of associated risk and harm. States parties should take into account the need to balance protection and evolving capacities, and define an acceptable minimum age when determining the legal age for sexual consent. States should avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity.
18 See general comment No. 12, para. 101.
BI A CK N D E X
283
U PV EDR A TED SION
FREEDOM OF ASSOCIATION 44. Adolescents want and need to spend an increasing amount of time with their peers. The associated benefits are not merely social but also contribute towards competencies that are foundational for successful relationships, employment and community participation, building, inter alia, emotional literacy, a sense of belonging, skills such as conflict resolution and strengthened trust and intimacy. Association with peers is a major building block in adolescent development, the value of which should be recognized within the school and learning environment, recreational and cultural activities and opportunities for social, civic, religious and political engagement.
CIVIL RIGHTS AND FREEDOMS
BIRTH REGISTRATION 41. The lack of birth registration can result in significant additional complications during adolescence, such as the denial of basic services, the inability to prove nationality or receive an identification document, a heightened risk of being exploited or trafficked, a lack of necessary safeguards in the criminal justice and immigration systems and the underage conscription into the armed forces. Adolescents who have not been registered at birth or immediately after should be provided with free late birth certificates and civil registration.
FREEDOM OF EXPRESSION
PRIVACY AND CONFIDENTIALITY
42. Article 13 of the Convention affirms that children have the right to freedom of expression and that the exercise of that right may be subject only to the restrictions set out in article 13 (2). The obligation of parents and caregivers to provide appropriate guidance in accordance with the evolving capacities of adolescents should not interfere with adolescents’ right to freedom of expression. Adolescents have the right to seek, receive and impart information and ideas and use the means of their dissemination, including spoken, written and sign language and such non-verbal expression as images and objects of art. Means of expression include, for example, books, newspapers, pamphlets, posters, banners, digital and audiovisual media, as well as dress and personal style.
FREEDOM OF RELIGION 43. The Committee urges States parties to withdraw any reservations to article 14 of the Convention, which highlights the right of the child to freedom of religion and recognizes the rights and duties of parents and guardians to provide direction to the child in a manner consistent with his or her evolving capacities (see also art. 5). In other words, it is the child who exercises the right to freedom of religion, not the parent, and the parental role necessarily diminishes as the child acquires an increasingly active role in exercising choice throughout adolescence. Freedom of religion should be respected in schools and other institutions, including with regard to choice over attendance in religious instruction classes, and discrimination on the grounds of religious beliefs should be prohibited.19 19 See, for example, CRC/C/15/Add.194, paras. 32 and 33, and CRC/C/15/ Add.181, paras. 29 and 30. 284
45. States should guarantee that adolescents’ right to freedom of association and peaceful assembly in all its forms is fully respected, consistent with the restrictions delineated in article 15 (2) of the Convention, including through the provision of safe spaces for both girls and boys. Legal recognition should be afforded to adolescents to establish their own associations, clubs, organizations, parliaments and forums, both in and out of school, form online networks, join political parties and join or form their own trade unions. Measures should also be introduced to protect adolescent human rights defenders, particularly girls, who often face gender-specific threats and violence.
46. The right to privacy takes on increasing significance during adolescence. The Committee has repeatedly raised concerns about violations of privacy in respect of, for example, confidential medical advice; space for and belongings of adolescents in institutions; correspondence and other communications, either in the family or other forms of care; and exposure of those involved in criminal proceedings.20 The right to privacy also entitles adolescents to have access to their records held by educational, healthcare, childcare and protection services and justice systems. Such information should only be accessible in compliance with due process guarantees and to individuals authorized by law to receive and use it.21 States should, through dialogue with adolescents, ascertain where breaches of privacy have taken place, including in relation to personal engagement in the digital environment and the use of data by commercial and other entities. States should also take all appropriate measures to strengthen and ensure respect for the confidentiality of data and the privacy of adolescents, consistent with their evolving capacities.
RIGHT TO INFORMATION 47. Access to information encompasses all forms of media but particular attention needs to be given to the digital environment, as adolescents increasingly use mobile technology and as social and digital media become the 20 See United Nations Children’s Fund (UNICEF), Implementation Handbook on the Convention on the Rights of the Child (2007), pp. 203-211. Available from www.unicef.org/publications/files/ Implementation_Handbook_for_the_Convention_on_the_Rights_of_the_ Child_Part_1_of_3.pdf. 21 See Human Rights Committee general comment No. 16 (1988) on the right to privacy, paras. 2-4.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
VIOLENCE AGAINST CHILDREN
PROTECTION FROM ALL FORMS OF VIOLENCE primary means through which they communicate and receive, create and disseminate information. Adolescents use the online environment, inter alia, to explore their identity, learn, participate, express opinions, play, socialize, engage politically and discover employment opportunities. In addition, the Internet provides opportunities for gaining access to online health information, protective support and sources of advice and counselling and can be utilized by States as a means of communicating and engaging with adolescents. The ability to access relevant information can have a significant positive impact on equality. The recommendations from the days of general discussion on the media in 1996 and 2014 have particular resonance for adolescents.22 States should adopt measures to ensure that all adolescents have access, without discrimination, to different forms of media and support and promote equal access to digital citizenship, including through the promotion of accessible formats for adolescents with disabilities. Training and support should be provided as part of the basic education curriculum to ensure the development of adolescents’ digital, information and media and social literacy skills.23 48. The digital environment can also expose adolescents to risks, such as online fraud, violence and hate speech, sexist speech against girls and lesbian, gay, bisexual, transgender and intersex adolescents, cyberbullying, grooming for sexual exploitation, trafficking and child pornography, over-sexualization and targeting by armed or extremist groups. This should not however restrict adolescents’ access to the digital environment. Instead, their safety should be promoted through holistic strategies, including digital literacy with regard to online risks and strategies for keeping them safe, strengthened legislation and law enforcement mechanisms to tackle abuse online and fight impunity, and training parents and professionals who work with children. States are urged to ensure the active engagement of adolescents in the design and implementation of initiatives aimed at fostering online safety, including through peer mentoring. Investment is needed in the development of technological solutions on prevention and protection and the availability of assistance and support. States are encouraged to require businesses to undertake child-rights due diligence with a view to identifying, preventing and mitigating the impact of risks on children’s rights when using digital media and information and communications technology. 22 For 2014 discussion, see www.ohchr.org/ D o c u m e n t s / H R B o d i e s / C R C / D i s c u s s i o n s / 2014/DGD_report.pdf; for 1996 discussion, see www.ohchr.org/Documents/HRBodies/CRC/ Discussions/Recommendations/Recommendations1996.pdf. 23 See www.ohchr.org/Documents/HRBodies/CRC/Discussions/2014/DGD_ report.pdf, para. 95.
49. The Committee refers States parties to the recommendations in general comments No. 13 (2011) on the right of the child to freedom from all forms of violence and No. 18 (2014) on harmful practices for comprehensive legislative, administrative, social and educational measures to bring an end to all forms of violence, including a legal prohibition on corporal punishment in all settings, and to transform and bring an end to all harmful practices. States parties need to create more opportunities for scaling up institutional programmes on prevention and rehabilitation, and the social reintegration of adolescent victims. The Committee highlights the need to involve adolescents in the development of prevention strategies and protective responses to victims of violence.
FAMILY ENVIRONMENT AND ALTERNATIVE CARE
SUPPORT FOR PARENTS AND CAREGIVERS 50. The role of parents and caregivers in providing security, emotional stability, encouragement and protection to children remains important throughout adolescence. The Committee emphasizes that States’ obligations to render appropriate assistance to parents and caregivers, as outlined in articles 18 (2) and (3) of the Convention, and to assist parents in providing the support and living conditions necessary for optimum development consistent with article 27 (2), have equal application to parents of adolescents. Such support should respect the rights and evolving capacities of adolescents and the increasing contribution they make to their own lives. States should ensure that they do not, in the name of traditional values, tolerate or condone violence, reinforce unequal power relations within family settings and, therefore, deprive adolescents of the opportunity to exercise their basic rights.24 51. The Committee draws States parties’ attention to the significance of a growing divide between the environments in which adolescents live, characterized by the digital era and globalization, and those in which their parents or caregivers grew up. Adolescents are exposed to and inevitably influenced by a global commercial world, unmediated or regulated by parental or community values, that can inhibit intergenerational understanding. This changing context poses challenges to the capacity of parents and caregivers to communicate effectively with adolescents and provide guidance and protection 24 See A/HRC/32/32.
BI A CK N D E X
285
U PV EDR A TED SION in a manner that takes into account the current realities of their lives. The Committee recommends that States undertake research with adolescents and their parents and caregivers into the nature of guidance, assistance, training and support needed to help address the intergenerational divergence of experience.
ADOLESCENTS IN ALTERNATIVE CARE 52. There is significant evidence of poor outcomes for adolescents in large long-term institutions, as well as in other forms of alternative care, such as fostering and small group care, albeit to a much lesser degree. These adolescents experience lower educational attainment, dependency on social welfare and higher risk of homelessness, imprisonment, unwanted pregnancy, early parenthood, substance misuse, self-harm and suicide. Adolescents in alternative care are commonly required to leave once they reach 16-18 years of age and are particularly vulnerable to sexual abuse and exploitation, trafficking and violence as they lack support systems or protection and have been afforded no opportunities to acquire the skills and capacities to protect themselves. Those with disabilities are often denied opportunities for community living and are transferred to adult institutions, where they are at increased risk of being subjected to continuing violations of their rights. 53. States should commit strongly to and invest more in supporting adolescents in alternative care. Preference for foster and small homes needs to be complemented with the measures necessary to tackle discrimination, ensure regular reviews of adolescents’ individual situations, support their education, give them a real voice in the processes affecting them and avoid multiple moves. States are urged to ensure that institutionalization is used only as a measure of last resort and to ensure the appropriate protection of all children living in institutions, including through access to confidential complaints mechanisms and justice. States should also adopt measures to support the independence and improve the life chances of adolescents in alternative care and address the particular vulnerabilities and insecurities they face as they become old enough to leave such care. 54. Adolescents leaving alternative care require support in preparing for the transition, gaining access to employment, housing and psychological support, participating in rehabilitation with their families where that is in their best interest and gaining access to after-care services consistent with the Guidelines for the Alternative Care of Children.25
ADOLESCENT-HEADED FAMILIES 55. A significant number of adolescents are the primary caregivers of their families, either because they themselves are parents or because their parents have died or disappeared or are absent. Articles 24 and 27 of the Convention require that adolescent parents and caregivers be provided with basic knowledge of child health, nutrition and breastfeeding, and appropriate support to assist them in fulfilling their responsibilities towards the children they 25 General Assembly resolution 64/142, annex. See also Committee on the Rights of the Child general comment No. 9. 286
are responsible for and, when needed, material assistance with regard to nutrition, clothing and housing. Adolescent caregivers need extra support in order to enjoy their rights to education, play and participation. In particular, States should introduce social protection interventions at key stages of the life cycle and respond to the specific requirements of adolescent caregivers.
BASIC HEALTH AND WELFARE
HEALTH CARE 56. Health services are rarely designed to accommodate the specific health needs of adolescents, a problem that is compounded by the lack of demographic and epidemiological data and statistics disaggregated by age, sex and disability. When adolescents seek help, they often experience legal and financial barriers, discrimination, lack of confidentiality and respect, violence and abuse, stigma and judgmental attitudes from health-care personnel. 57. Adolescents’ health outcomes are predominantly a consequence of social and economic determinants and structural inequalities, mediated by behaviour and activity, at the individual, peer, family, school, community and societal levels. Accordingly, States parties, in collaboration with adolescents, should undertake comprehensive multistakeholder reviews of the nature and extent of adolescent health problems and the barriers they face in gaining access to services, as a basis for future comprehensive health policies, programmes and public health strategies. 58. Mental health and psychosocial problems, such as suicide, self-harm, eating disorders and depression, are primary causes of ill health, morbidity and mortality among adolescents, particularly among those in vulnerable groups.26 Such problems arise from a complex interplay of genetic, biological, personality and environmental causes and are compounded by, for example, experiences of conflict, displacement, discrimination, bullying and social exclusion, as well as pressures concerning body image and a culture of “perfection”. The factors known to promote resilience and healthy development and to protect against mental ill health include strong relationships with and support from key adults, positive role models, a suitable standard of living, access to quality secondary education, freedom from violence and discrimination, opportunities for influence and decision-making, mental health awareness, problem-solving and coping skills and safe and healthy local environments. The Committee emphasizes that States should adopt an approach based on public health and psychosocial support rather than overmedicalization and institutionalization. A comprehensive multisectoral response is needed, through integrated systems of adolescent mental health care that involve parents, peers, the wider family and schools and the provision of support and assistance through trained staff.27 26 See general comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health, para. 38. 27 See A/HRC/32/32.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 59. The Committee urges States to adopt comprehensive gender and sexuality-sensitive sexual and reproductive health policies for adolescents, emphasizing that unequal access by adolescents to such information, commodities and services amounts to discrimination.28 Lack of access to such services contributes to adolescent girls being the group most at risk of dying or suffering serious or lifelong injuries in pregnancy and childbirth. All adolescents should have access to free, confidential, adolescent-responsive and non-discriminatory sexual and reproductive health services, information and education, available both online and in person, including on family planning, contraception, including emergency contraception, prevention, care and treatment of sexually transmitted infections, counselling, pre-conception care, maternal health services and menstrual hygiene.
63. The Committee encourages States to recognize adolescents’ diverse realities and ensure that they have access to confidential HIV testing and counselling services and to evidence-based HIV prevention and treatment programmes provided by trained personnel who fully respect the rights of adolescents to privacy and nondiscrimination. Health services should include HIV-related information, testing and diagnostics; information on contraception and the use of condoms; care and treatment, including antiretroviral and other medicines and related technologies for the care and treatment of HIV/AIDS; advice on suitable nutrition; spiritual and psychosocial support; and family, community and home-based care. Consideration should be given to reviewing HIV-specific legislation that criminalizes the unintentional transmission of HIV and the non-disclosure of one’s HIV status.
60. There should be no barriers to commodities, information and counselling on sexual and reproductive health and rights, such as requirements for third-party consent or authorization. In addition, particular efforts need to be made to overcome barriers of stigma and fear experienced by, for example, adolescent girls, girls with disabilities and lesbian, gay, bisexual, transgender and intersex adolescents, in gaining access to such services. The Committee urges States to decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.
DRUG USE AMONG ADOLESCENTS
61. Age-appropriate, comprehensive and inclusive sexual and reproductive health education, based on scientific evidence and human rights standards and developed with adolescents, should be part of the mandatory school curriculum and reach out-of-school adolescents. Attention should be given to gender equality, sexual diversity, sexual and reproductive health rights, responsible parenthood and sexual behaviour and violence prevention, as well as to preventing early pregnancy and sexually transmitted infections. Information should be available in alternative formats to ensure accessibility to all adolescents, especially adolescents with disabilities.
HIV/AIDS 62. Adolescents are the only age group in which death due to AIDS is increasing.29 Adolescents may face challenges in gaining access to antiretroviral treatment and remaining in treatment; the need to gain the consent of guardians in order to access HIV-related services, disclosure and stigma are some barriers. Adolescent girls are disproportionately affected, representing two thirds of new infections. Lesbian, gay, bisexual and transgender adolescents, adolescents who exchange sex for money, goods or favours and adolescents who inject drugs are also at a higher risk of HIV infection.
28 See Committee on Economic, Social and Cultural Rights general comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, para. 29. 29 See http://apps.who.int/iris/bitstream/10665/112750/1/WHO_FWC_ MCA_14.05_eng.pdf?ua=1, p. 3.
64. Adolescents are more likely to be initiated into drug use and can be at a higher risk of drug-related harm than adults, and drug use initiated in adolescence more often leads to dependence. Those identified at greatest risk of drug-related harm are adolescents in street situations, those excluded from school, those with histories of trauma, family breakdown or abuse, and those living in families coping with drug dependence. States parties have an obligation to protect adolescents from the illicit use of narcotic drugs and psychotropic substances. States parties should ensure adolescents’ right to health in relation to the use of such substances, as well as tobacco, alcohol and solvents, and put in place prevention, harm-reduction and dependence treatment services, without discrimination and with sufficient budgetary allocation. Alternatives to punitive or repressive drug control policies in relation to adolescents are welcome.30 Adolescents should also be provided with accurate and objective information based on scientific evidence aimed at preventing and minimizing harm from substance use.
INJURIES AND A SAFE ENVIRONMENT 65. Unintended injuries or injuries due to violence are a leading cause of death and disability among adolescents. Most of the unintentional injuries result from road traffic crashes, drowning, burns, falls and poisoning. To reduce risk, States parties should develop multisectoral strategies that include legislation requiring the use of protective equipment, policies on driving while intoxicated and on licensing, programmes on education, skills development and behaviour change, adaptations to the environment, and the provision of care and rehabilitation services for those who suffer injuries.
ADEQUATE STANDARD OF LIVING 66. The impact of poverty has profound implications during adolescence, sometimes leading to extreme stress and insecurity and to social and political exclusion. Strategies imposed on or adopted by adolescents to address economic hardship can include dropping out of school, being involved in child or forced marriage, becoming 30 See A/HRC/32/32.
BI A CK N D E X
287
U PV EDR A TED SION involved in sexual exploitation, trafficking, hazardous or exploitative work or work that interferes with education, becoming members of a gang, being recruited into militias and migrating. 67. States are reminded of the right of every child to a suitable standard of living for physical, mental, spiritual, moral and social development, and are urged to introduce social protection floors that provide adolescents and their families with basic income security, protection against economic shocks and prolonged economic crises and access to social services.
EDUCATION, LEISURE AND CULTURAL ACTIVITIES
EDUCATION 68. Guaranteeing the right to universal, quality and inclusive education and training is the single most important policy investment that States can make to ensure the immediate and long-term development of adolescents, and a growing body of evidence testifies to the positive impact of secondary education in particular.31 States are encouraged to introduce widely available secondary education for all as a matter of urgency and to make higher education accessible to all on the basis of capacity by every appropriate means. 69. The Committee is deeply concerned at the challenges faced by many States to achieve equality in the enrolment of girls and boys and keep girls in school beyond primary education. Investment in girls’ secondary education, a commitment necessary to comply with articles 2, 6 and 28 of the Convention, also serves to protect girls from child and forced marriage, sexual exploitation and early pregnancy, and contributes significantly towards the future economic potential of girls and their children. Investment should also be made in strategies that promote positive gender relations and social norms; address sexual and gender-based violence, including within schools; and promote positive role models, family support and the economic empowerment of women, to overcome the legal, political, cultural, economic and social barriers that represent barriers for girls. Furthermore, States should recognize that a growing number of boys are not enrolling and are not remaining in school, identify the causes and adopt appropriate measures to support boys’ continued participation in education. 70. The Committee notes with concern the numbers of adolescents in marginalized situations who are not given the opportunity to make the transition to secondary education, such as adolescents living in poverty; lesbian, gay, bisexual, transgender and intersex adolescents; adolescents belonging to minorities; adolescents with psychosocial, sensory or physical disabilities; adolescents who are migrating; adolescents in situations of armed conflict or natural disasters; and adolescents in street situations or working. Proactive measures are necessary to end discrimination of marginalized groups in gaining 31 See www.unicef.org/adolescence/files/SOWC_2011_Main_Report_ EN_02092011.pdf. 288
access to education, including by establishing cash transfer programmes, respecting minority and indigenous cultures and children from all religious communities, promoting inclusive education for children with disabilities, combating bullying and discriminatory attitudes within the education system and providing education in refugee camps. 71. Efforts need to be made to consult adolescents on the barriers impeding their continued participation in school, given the high levels of early school leaving while still illiterate or without obtaining qualifications. The Committee has observed the following contributory factors: fees and associated costs; family poverty and lack of adequate social protection schemes, including adequate health insurance; lack of adequate and safe sanitation facilities for girls; exclusion of pregnant schoolgirls and adolescent mothers; persistent use of cruel, inhuman and degrading punishments; lack of effective measures to eliminate sexual harassment in school; sexual exploitation of girls; environments not conducive to girls’ inclusion and safety; inappropriate teaching pedagogies; irrelevant or outdated curricula; failure to engage students in their own learning; and bullying. In addition, schools often lack the flexibility needed for adolescents to be able to combine work and/or family care responsibilities with their education, without which they may be unable to continue to meet the associated costs of schooling. Consistent with article 28 (1) (e) of the Convention and Sustainable Development Goal 4, States should introduce comprehensive and proactive measures to address all these factors and improve enrolment and attendance, reduce early school leaving and provide opportunities to complete education for those who have left. 72. The Committee draws attention to its general comment No. 1 (2001) on the aims of education, in which it asserts the need for education to be child-centred, child-friendly and empowering and emphasizes the importance of a more collaborative and participatory pedagogy.32 Curricula for secondary education should be designed to equip adolescents for active participation, develop respect for human rights and fundamental freedoms, promote civic engagement and prepare adolescents to lead responsible lives in a free society. To develop adolescents’ fullest potential and keep them in school, consideration should be given to how learning environments are designed, to ensure they capitalize on adolescents’ capacity for learning, motivation to work with peers and empowerment, and focus on experiential learning, exploration and limit testing.
TRANSITIONS FROM EDUCATION TO TRAINING AND/OR DECENT WORK 73. Significant numbers of adolescents are not in education, training or employment, leading to disproportionate levels of unemployment, underemployment and exploitation as they move towards adulthood. The Committee urges States to support out-of-school adolescents in a manner appropriate to their age to facilitate the transition to decent work, including by ensuring consistency between education and labour laws, and to adopt policies to promote their 32 See Committee on the Rights of the Child general comment No. 1 (2001) on the aims of education, para. 2.
BACK
KEYWORDS INDEX
U PV EDR A TED SION future employment.33 In line with article 28 (1) (d), States should make educational and vocational information and guidance available and accessible to adolescents. 74. Both formal and informal education and training need to be designed for the twenty-first century skills34 required in the modern labour market, including integrating soft and transferrable skills into the curricula; expanding opportunities for experiential or practical learning; developing vocational training based on labour market demand; establishing public-private sector partnerships for entrepreneurship, internships and apprenticeships; and providing guidance on academic and vocational opportunities. States should also disseminate information on employment rights, including rights in relation to membership in trade unions and professional associations.
LEISURE, RECREATION AND THE ARTS 75. Adolescents’ right to rest and leisure and to engage and participate freely in play, recreational and artistic activities, both online and offline, are fundamental to their exploration of identity, enabling adolescents to explore their culture, forge new artistic forms, create relationships and evolve as human beings. Leisure, recreation and the arts give adolescents a sense of uniqueness that is fundamental to the rights to human dignity, optimum development, freedom of expression, participation and privacy. The Committee notes with regret that those rights are widely neglected in adolescence, especially for girls. Fear of and hostility towards adolescents in public spaces, and a lack of adolescent-friendly urban planning, educational and leisure infrastructure, can inhibit the freedom to engage in recreational activity and sports. The Committee draws the attention of States to the rights embodied in article 31 of the Convention and its recommendations in general comment No. 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts.
SPECIAL PROTECTION MEASURES
MIGRATION 76. Growing numbers of adolescent girls and boys migrate, either within or outside their country of origin, in search of improved standards of living, education or family reunification. For many, migration offers significant social and economic opportunities. However, it also poses risks, including physical harm, psychological trauma, marginalization, discrimination, xenophobia and sexual and economic exploitation and, when crossing borders, 33 Target 8.6 of the Sustainable Development Goals relates to “youth” (adolescents between 15 and 24 years of age). See General Assembly resolution 70/1. 34 The term “twenty-first century skills” refers to a broad set of knowledge, skills, work habits and character traits that are believed — by educators, school reformers, college professors, employers and others — to be critically important to success in today’s world, particularly in collegiate programmes and contemporary careers and workplaces.
immigration raids and detention.35 Many adolescent migrants are denied access to education, housing, health, recreation, participation, protection and social security. Even where rights to services are protected by laws and policies, adolescents may face administrative and other obstacles in gaining access to such services, including: demands for identity documents or social security numbers; harmful and inaccurate age-determination procedures; financial and linguistic barriers; and the risk that gaining access to services will result in detention or deportation.36 The Committee refers States parties to its comprehensive recommendations elaborated in respect of migrant children.37 77. The Committee stresses that article 22 of the Convention recognizes that refugee and asylum-seeking children require special measures if they are to enjoy their rights and benefit from the additional safeguards given to them through the international refugee protection regime. Those adolescents should not be subjected to expedited removal procedures but rather be considered for entry into the territory and should not be returned or refused entry before a determination of their best interests has been made and a need for international protection has been established. In line with the obligation under article 2 to respect and ensure the rights of every child within their jurisdiction, irrespective of status, States should introduce age- and gender-sensitive legislation governing both unaccompanied and separated refugee and asylumseeking adolescents, as well as migrants, underpinned by the best interests principle, prioritizing the assessment of protection needs over the determination of immigration status, prohibiting immigration-related detention and referring to the recommendations in general comment No. 35 See www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/ DGD2012ReportAndRecommendations.pdf. 36 See Fundamental Rights Agency, “Apprehension of migrants in an irregular situation – fundamental rights considerations”, 9 October 2012. Available from https://fra.europa.eu/sites/default/files/fra-2013-apprehension-migrantsirregular-situation_en.pdf. 37 See footnote 35 above.
BI A CK N D E X
289
U PV EDR A TED SION 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, addressing the particular vulnerability of those adolescents.38 States should also introduce measures to address the factors driving adolescents to migrate and the vulnerabilities and rights violations faced by adolescents left behind when parents migrate, including dropping out of school, child labour, vulnerability to violence and criminal activities and burdensome domestic responsibilities.
TRAFFICKING 78. Many adolescents are at risk of being trafficked for economic reasons or for sexual exploitation. States are urged to establish a comprehensive and systematic mechanism for collecting data on the sale of, trafficking in and abduction of children, ensuring that the data is disaggregated and paying particular attention to children living in the most vulnerable situations. States should also invest in rehabilitation and reintegration services and psychosocial support for child victims. Attention should be paid to the gender-based dimensions of vulnerability and exploitation. Awareness-raising activities, including through social media, need to be conducted in order to make parents and children aware of the dangers of both domestic and international trafficking. States are urged to ratify the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and to harmonize legislation accordingly.
CONFLICT AND CRISIS 79. Situations of armed conflict and humanitarian disasters result in the breakdown of social norms and family and community support structures. They force many displaced and crisis-affected adolescents to assume adult responsibilities and expose them to risks of sexual and gender-based violence, child and forced marriage and trafficking. Furthermore, adolescents in such situations are likely to be denied education, skills training, safe employment opportunities and access to appropriate sexual and reproductive health services and information, and to face isolation, discrimination and stigma, mental health and risk-taking behaviour. 80. The Committee is concerned about the failure of humanitarian programmes to address the specific needs and rights of adolescents. It urges States parties to ensure that adolescents are provided with systematic opportunities to play an active role in the development and design of protection systems and reconciliation and peacebuilding processes. Explicit investment in postconflict and transition reconstruction should be seen as an opportunity for adolescents to contribute to the economic and social development, resilience-building and peaceful transition of the country. In addition, emergency preparedness programmes should address adolescents, recognizing both their vulnerability and right to protection, and their potential role in supporting communities and helping to mitigate risk. 38 See general comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin. 290
RECRUITMENT INTO ARMED FORCES AND GROUPS 81. The Committee expresses deep concern about the fact that adolescent boys and girls are being recruited, including through the use of social media, by States’ armed forces, armed groups and militias, and urges all States parties to ratify the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. It is also concerned about adolescents’ vulnerability to being enticed by terrorist propaganda, extremist views and involvement in terrorist activities. Research with adolescents should be undertaken to explore the factors driving their engagement in such activities and States should take appropriate action in response to the findings, paying particular attention to measures promoting social integration. 82. States should ensure the recovery and gender-sensitive reintegration of adolescents who are recruited into armed forces and groups, including those in migration situations, and prohibit the recruitment or use of adolescents in all hostilities as well as peace or ceasefire negotiations and agreements with armed groups.39 States should support opportunities for adolescent participation in peace movements and peer-to-peer approaches to nonviolent conflict resolution rooted in local communities, to ensure the sustainability and cultural appropriateness of interventions. The Committee urges States parties to take firm measures to ensure that cases of conflict-related sexual violence, sexual exploitation and abuse and other human rights abuses against adolescents are promptly and duly addressed. 83. The Committee recognizes that, in many parts of the world, adolescents are recruited into gangs and pandillas, which often provide social support, a source of livelihood, protection and a sense of identity in the absence of opportunities to achieve such goals through legitimate activities. However, the climate of fear, insecurity, threat and violence posed by gang membership threatens the realization of the rights of adolescents and is a major factor contributing to adolescent migration. The Committee recommends that more emphasis be placed on the development of comprehensive public policies that address the root causes of juvenile violence and gangs, instead of aggressive law enforcement approaches. Investment is needed in prevention activities for at-risk adolescents, interventions to encourage adolescents to leave gangs, rehabilitation and reintegration of gang members, restorative justice and the creation of municipal alliances against crime and violence, with an emphasis on the school, the family and social inclusion measures. The Committee urges States to give due consideration to adolescents forced to leave their country for reasons related to gang violence and to afford them refugee status.
CHILD LABOUR 84. The Committee emphasizes that all adolescents have the right to be protected from economic exploitation and the worst forms of child labour, and urges States to 39 See A/68/267, paras. 81-87.
BACK
KEYWORDS INDEX
U PV EDR A TED SION implement the provisions of article 32 (2) of the Convention, as well as the International Labour Organization Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182). 85. The introduction to age-appropriate forms of work plays an important developmental role in the lives of adolescents, equipping them with skills and enabling them to learn responsibilities and, where necessary, to contribute to their families’ economic well-being and support their access to education. Action against child labour should comprise comprehensive measures, including schoolto-work transitions, social and economic development, poverty eradication programmes and universal and free access to quality, inclusive primary and secondary education. It should be underlined that adolescents, once they reach the national legal minimum working age, which should be aligned with international standards and with compulsory education, have the right to perform light work under appropriate conditions, with due respect accorded to their rights to education and to rest, leisure, play, recreational activities, cultural life and the arts. 86. The Committee recommends that States adopt a transitional approach towards achieving a balance between the positive role of work in adolescents’ lives while ensuring their right to compulsory education, without discrimination. Schooling and the introduction to decent work should be coordinated to facilitate both in the lives of adolescents, according to their age and the effective mechanisms introduced to regulate such work, and give redress when adolescents are the victims of exploitation. The protection from hazardous work of all children under 18 years of age should be stipulated, with a clear list of specific harmful work. Efforts directed at preventing harmful work and working conditions should be made as a matter of priority, paying special attention to girls involved in domestic labour and other often “invisible” workers.
JUSTICE FOR ADOLESCENTS
is seriously concerned at the number of States seeking to lower the age of criminal responsibility. It calls on States to maintain the age of criminal majority at 18 years.
INTERNATIONAL COOPERATION
89. The Committee stresses that implementation of the Convention is a cooperative exercise for the States parties, and highlights the need for international cooperation. The Committee encourages States parties to contribute and use, as appropriate, technical assistance from the United Nations and regional organizations in implementing the rights of adolescents.
DISSEMINATION 90. The Committee recommends that States disseminate widely the present general comment to all stakeholders, in particular parliament and all levels of government, including within ministries, departments and municipal/ local authorities, and to all adolescents. The Committee also recommends that the present general comment be translated into all relevant languages, in adolescentfriendly versions and in formats accessible to adolescents with disabilities.
87. Adolescents may come into contact with justice systems through conflict with the law, as victims or witnesses of crime or for other reasons, such as care, custody or protection. Measures are needed to reduce adolescents’ vulnerability both as victims and perpetrators of crimes. 88. States parties are urged to introduce comprehensive juvenile justice policies that emphasize restorative justice, diversion from judicial proceedings, alternative measures to detention and preventive interventions, to tackle social factors and root causes, consistent with articles 37 and 40 of the Convention, and the United Nations Guidelines for the Prevention of Juvenile Delinquency. The focus should be on rehabilitation and reintegration, including for those adolescents involved in activities categorized as terrorism, in line with the recommendations in general comment No. 10 (2007) on children’s rights in juvenile justice. Detention should be used only as a measure of last resort and for the shortest appropriate period of time, and adolescents should be detained separately from adults. The Committee emphasizes the imperative to ban the death penalty and prohibit life imprisonment for anyone convicted of a crime committed when under the age of 18 years. The Committee
BI A CK N D E X
291
number 21
U PV EDR A TED SION
IN T R O DUC T I ON: “CHANGE OUR STORY”
1. Children in street situations consulted for the present general comment spoke strongly about the need for respect, dignity and rights. In expressing their feelings, they said, inter alia: “Respect us as human beings”; “I would like for people who have never lived on the streets to see us as persons with pride, like normal people”; “It’s not about getting us off the streets and into shelters. It’s about giving us a status”; “Governments should not say we should not be on the streets. They should not harass us if on the streets. We should be accepted”; “Living on the street does not mean that we cannot have rights”; “The street leaves its mark: either you get out or you don’t”; “We don’t want help, charity, pity. Governments should work with the community to give us rights. We’re not asking for charity. I want to become someone to fend for myself”; “[People] should give us a chance to use our gifts and talents to achieve our dreams”; “Give us the opportunity to change our story”.1
O V ER A LL CONT EXT PURPOSE 2. In the present general comment, the Committee on the Rights of the Child provides authoritative guidance to States on developing comprehensive, long-term national strategies on children in street situations using a holistic, child rights approach and addressing both prevention and response in line with the Convention on the Rights of the Child. While the Convention makes no explicit reference to them, all of its provisions are applicable to children in street situations, who experience violations of a large majority of the Convention’s articles.
CONSULTATIONS 3. In total, 327 children and young people from 32 countries were consulted in seven regional consultations. Civil society representatives responded to a general call for submissions, and an advanced draft was shared with all States parties.
TERMINOLOGY 4. In the past, the terms used to describe children in street situations have included “street children”, “children on the street”, “children of the street”, “runaway children”, throwaway children”, “children living and/or working on the street”, “homeless children” and “street-connected children”. In the present general comment, the term “children in street situations” is used to comprise: (a)
294
1 All quotations are from consultations or written submissions for the present general comment. Respectively, they are from: children in Bangladesh (written submission from Dhaka); children in Latin America (consultation in Mexico); a 15-year-old boy from Brazil; an 18-year-old boy and girl from India; children and young people from the Democratic Republic of the Congo; children and young people in Europe (consultation in Brussels); a 16-year-old boy from Pakistan; a boy from Burundi; and an 18-year-old boy from Brazil.
children who depend on the streets to live and/or work, whether alone, with peers or with family; and (b) a wider population of children who have formed strong connections with public spaces and for whom the street plays a vital role in their everyday lives and identities. This wider population includes children who periodically, but not always, live and/or work on the streets and children who do not live or work on the streets but who regularly accompany their peers, siblings or family in the streets. Concerning children in street situations, “being in public spaces” is understood to include spending a significant amount of time on streets or in street markets, public parks, public community spaces, squares and bus and train stations. It does not include public buildings such as schools, hospitals or other comparable institutions.
KEY OBSERVATIONS 5. There are different approaches used with respect to children in street situations, sometimes in combination. They include a child rights approach, whereby the child is respected as a rights holder and decisions are often made with the child; a welfare approach, involving the “rescue” of children perceived to be an object or victim from the street and whereby decisions are made for the child without serious consideration for her or his views; and a repressive approach, whereby the child is perceived to be a delinquent. The welfare and repressive approaches fail to take into account the child as a rights holder and result in the forcible removal of children from the streets, which further violates their rights. Indeed, claiming that welfare and repressive approaches are in the best interests of the child does not make them rights based.2 To apply the Convention, it is essential to use a child rights approach. 6. Children in street situations are not a homogenous group. Characteristics are diverse in terms of age, sex, ethnicity, indigenous identity, nationality, disability, sexual orientation and gender identity/expression, among others. This diversity implies different experiences, risks and needs. The nature and time spent physically on the street varies significantly from child to child, as does the nature and extent of relationships with peers, family members, community members, civil society actors and public authorities. Children’s relationships can help them survive on the streets and/or perpetuate conditions of violent abuse of their rights. Children engage in a range of activities in public spaces, including work, socialization, recreation/leisure, shelter, sleeping, cooking, washing and engaging in substance abuse or sexual activity. Children may engage in such activities voluntarily, through lack of viable choices or through coercion or force by other children or adults. Children may conduct these activities alone or in the company of family members,3 friends, acquaintances, gang members, or exploitative peers, older children and/or adults. 7. Often, data are not systematically collected or disaggregated, so it is not known how many children 2 See general comments No. 13 (2011) on the right of the child to freedom from all forms of violence, para. 59, and No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration. 3 For children in street situations with their families, this general comment focuses on the children as the main rights-holders. Where children in street situations have children of their own, the best interests of each generation of children must be a primary consideration.
BACK
KEYWORDS INDEX
U PV EDR A TED SION are in street situations. Estimates fluctuate according to definitions used that reflect socioeconomic, political, cultural and other conditions. The absence of data makes these children invisible, which leads to policies not being developed or measures that are ad hoc, temporary or short-term. This results in the persistence of multiple rights violations that force children onto the streets and that continue when children are on the streets. This issue concerns every State.
respect for them as rights holders and full citizens, and to enhance understanding of children’s connections to the street.
HOLISTIC LONG-TERM
STRATEGIES BASED ON A CHILD RIGHTS APPROACH 8. Causes, prevalence and experiences of children in street situations differ within and between States. Inequalities based on economic status, race and gender are among the structural causes of the emergence and exclusion of children in street situations. These are exacerbated by material poverty, inadequate social protection, poorly targeted investment, corruption and fiscal (tax and expenditure) policies that reduce or eliminate the ability of poorer people to move out of poverty. Abrupt destabilization, caused by conflict, famine, epidemic, natural disaster or forced eviction, or events leading to displacement or forced migration, further compound the effects of structural causes. Other causes include: violence, abuse, exploitation and neglect at home or in care or educational (including religious) institutions; the death of caregivers; child relinquishment (including through HIV/ AIDS);4 unemployment of caregivers; precarious families; family breakdown; polygamy;5 exclusion from education; substance abuse and mental ill-health (of children or families); intolerance and discrimination, including against children with disabilities, children accused of witchcraft, former child soldiers rejected by families and children cast out from families as a result of questioning their sexuality or identifying as lesbian, gay, bisexual, transgender, intersex or asexual; and families’ inability to accept children’s resistance to harmful practices, such as child marriage and female genital mutilation.6
A. CHILD RIGHTS APPROACH DESCRIPTION 10. In a child rights approach, the process of realizing children’s rights is as important as the end result. A child rights approach ensures respect for the dignity, life, survival, well-being, health, development, participation and non-discrimination of the child as a rights holder. 11. According to the United Nations Children’s Fund (UNICEF),7 a child rights approach is one that: a) Furthers the realization of child rights as established in the Convention and other international human rights instruments; b) Uses child rights standards and principles from the Convention and other international human rights instruments to guide behaviour, actions, policies and programmes, particularly: non-discrimination; the best interests of the child; the right to life, survival and development; the right to be heard and taken seriously; and the child’s right to be guided in the exercise of his or her rights by caregivers, parents and community members, in line with the child’s evolving capacities; c) Builds the capacity of children as rights holders to claim their rights and the capacity of duty bearers to fulfil their obligations to children.
O B JEC T I VES
SIGNIFICANCE FOR CHILDREN IN STREET SITUATIONS
9. The objectives of the general comment are: a) To clarify the obligations of States in applying a child rights approach to strategies and initiatives for children in street situations; b) To provide comprehensive and authoritative guidance to States on using a holistic, child rights approach to: prevent children experiencing rights violations and the lack of choices that results in them having to depend on the streets for their survival and development; and to promote and protect the rights of children already in street situations, ensuring a continuum of care and helping them to develop to their fullest potential; c) To identify the implications of particular articles of the Convention for children in street situations to enhance 4 See general comment No. 3 (2003) on HIV/AIDS and the rights of the child, para. 7. 5 See joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2014) on harmful practices, paras. 25-28. 6 Ibid., paras. 19-24.
12. The Committee considers that strategies and initiatives that adopt a child rights approach fulfil the main criteria for good practice, regardless of level or context. Children in street situations are often distrustful of adult intervention in their lives. Their abusive treatment by adults in society has led them to be unwilling to relinquish their hard-won, albeit limited, autonomy. This approach emphasizes full respect for their autonomy, including supporting them to find alternatives to depending on the streets. It promotes their resilience and capabilities, increasing their agency in decision-making and empowering them as socioeconomic, political and cultural actors. It builds on their existing strengths and the positive contributions they make to their own survival and development and that of their 7 See UNICEF, Child Rights Education Toolkit: Rooting Child Rights in Early Childhood Education, Primary and Secondary Schools (Geneva, 2014), p. 21. Available from https://www.unicef.org/crc/files/UNICEF_CRE_Toolkit_ FINAL_web_version170414.pdf. See also general comment No. 13, para. 59. See also “Human Rights Based Approach to Development Cooperation”, available from http://hrbaportal.org/the-human-rights-based-approach-to-developmentcooperation-towards-a-common-understanding-among-un-agencies.
BI A CK N D E X
295
U PV EDR A TED SION peers, families and communities. Applying this approach is not only a moral and legal imperative but also the most sustainable approach for identifying and implementing long-term solutions with children in street situations.
B. NATIONAL STRATEGIES OVERVIEW 13. To comply with obligations under the Convention, States are urged to adopt holistic and long-term strategies and make the necessary budget allocations for children in street situations. The cross-cutting issues and processes are shown below, followed by the thematic content to be addressed in such strategies. As experts on their own lives, children in street situations should participate in developing and implementing strategies. A first step is for States to collect information about such children in their country to decide how best to uphold their rights. States should take a cross-sectoral approach to understand how policy in one area, for example, finance, affects policy in another, for example, education, which in turn affects children in street situations. States should encourage cross-sectoral and inter-State cooperation. LEGISLATIVE AND POLICY REVIEW 14. States should assess how laws and policies can be improved to reflect the recommendations of the present general comment. States should, with immediate effect: remove provisions that directly or indirectly discriminate on the grounds of the street situation of children or their parents or family; abolish any provisions allowing or supporting the round-up or arbitrary removal of children and their families from the streets or public spaces; abolish where appropriate offences that criminalize and disproportionately affect children in street situations, such as begging, breach of curfews, loitering, vagrancy and running away from home; and abolish offences that criminalize children for being a victim of commercial sexual exploitation, and so-called moral offences, such as sex outside of marriage. States should introduce or review an act on child protection or children based on a child rights approach and that specifically addresses children in street situations. The act should be implemented by enabling policies, mandates, operating procedures, guidelines, service delivery, oversight and enforcement mechanisms, and developed in collaboration with key stakeholders, including children in street situations. States may need to develop nationally relevant policy and legal definitions of such children on the basis of participatory research, in contexts where this is necessary to facilitate interventions by legally mandated professionals and services. However, the process of developing legal definitions should not delay taking action to address rights violations. ROLE OF THE STATE AND RESPONSIBILITIES, REGULATION AND COORDINATION OF NON-STATE ACTORS 15. Strategies for children in street situations should acknowledge State and non-State actors. The role of the State, as primary duty bearer, is outlined in section V below. 296
States have an obligation to help parents or caregivers to secure, within their abilities and financial capacities and with respect for the evolving capacities of the child, the living conditions necessary for the child’s optimal development (arts. 5, 18 and 27). States should also support civil society, as complementary actors, in providing personalized, specialist services for children in street situations the basis of a child rights approach, through funding, accreditation and regulation. The business sector must meet its responsibilities regarding children’s rights, and States should ensure it does so.8 Coordination is needed between State and non-State actors. States are legally obliged to ensure that non-State service providers operate in accordance with the provisions of the Convention.9 ADDRESSING COMPLEXITY 16. Strategies need to address multiple causes, ranging from structural inequalities to family violence. They also need to take into account measures for immediate implementation, such as stopping round-ups or the arbitrary removal of children from public spaces, and measures to be implemented progressively, such as comprehensive social protection. A combination of legal, policy and service provision changes is likely to be needed. States should commit to fulfilling human rights beyond childhood. Particularly, States should ensure follow-up mechanisms for children in alternative care settings and in street situations as they transition into adulthood at the age of 18, to avoid an abrupt termination of support and services. COMPREHENSIVE CHILD PROTECTION SYSTEMS 17. Within a legislative and policy framework, budgeting for, developing and strengthening holistic child protection systems, on the basis of a child rights approach, forms the basis of the practical measures required for prevention and response strategies. Such national child protection systems need to reach children in street situations and should incorporate fully the specific services they need. The systems need to provide a continuum of care across all relevant contexts, including prevention, early intervention, street outreach, helplines, drop-in centres, day-care centres, temporary residential care, family reunification, foster care, independent living or other short- or longterm care options. However, not all of these contexts are relevant for all children in street situations. For example, prevention and early intervention are priorities for children at the early stages of developing strong and harmful street connections, but are not relevant for children born in street situations. Some children may not experience residential placements while, for others, family reunification is not relevant or appropriate. Strategies should make it clear that 8 See general comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, para. 8. 9 See general comments No. 5 (2003) on general measures of implementation of the Convention, paras. 42-44; No. 7 (2005) on implementing child rights in early childhood, para. 32; No. 9 (2006) on the rights of children with disabilities, para. 25; and No. 16, para. 25.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
a child rights approach needs to apply to each and every context. Administrative burdens and delays in gaining access to child protection systems should be reduced. Information should be made available in child-friendly and accessible formats and children in street situations should be supported to understand and navigate child protection systems. CAPACITY-BUILDING OF THOSE IN CONTACT WITH THE CHILD 18. States should invest in good quality initial and inservice basic training on child rights, child protection and the local context of children in street situations for all professionals who may come into direct or indirect contact with children in street situations, in such areas as policymaking, law enforcement, justice, education, health, social work and psychology. This training may draw on the expertise of non-State actors and should be integrated into the curricula of relevant training institutions. Additional in-depth training on a child rights approach, psychosocial support and child empowerment is required for professionals working with children in street situations as a dedicated part of their mandate, for example, streetbased social workers and specialized child protection units of the police service. “Outreach walks” and “street walks” are an important on-the-ground training method. Basic and specialized training should include attitudinal and behavioural change, as well as knowledge transfer and skills development, and should encourage intersectoral cooperation and collaboration. National and local governments should understand and support the critical role of social workers, including street-based workers, in early detection, providing support to families with children at risk and to children in street situations. Professionals should be involved in participatory development of operating procedures, good practice guidelines, strategic directives, plans, performance standards and disciplinary codes, and should receive support to implement these in practice. States should facilitate sensitization and training for other stakeholders who come into direct or indirect contact with children in street situations, such as transport workers, media representatives, community and spiritual/ religious leaders and private sector actors, who should be encouraged to adopt the Children’s Rights and Business Principles.10 SERVICE PROVISION 19. States should take action to secure the ability of children in street situations to gain access to basic services such as health and education, and to justice, culture, sport and information. States should ensure their child protection systems provide for specialized services on the street, involving trained social workers with good knowledge of local street connections and who can help children reconnect with family, local community services and wider society. This does not necessarily imply that 10 See http://childrenandbusiness.org. See also general comment No. 16.
children should renounce their street connections, but rather, the intervention should secure their rights. Prevention, early intervention and street-based support services are mutually reinforcing elements and provide a continuum of care within an effective long-term and holistic strategy. While States are the primary duty bearers, civil society activities may complement States’ efforts in developing and delivering innovative and personalized service provision. IMPLEMENTATION GOVERNMENT LEVEL
AT
THE
LOCAL
20. Successful initiatives rely on a detailed understanding of local contexts and individualized support to children. Care must be taken when scaling up initiatives not to lose children in the process. States should encourage and support local-level, partnership-based, specialized interventions on the basis of a child rights approach, small and flexible, with adequate budgets, often led by civil society organizations with local expertise. These interventions should be coordinated by local governments and supported by the State, through the national child protection system. They could benefit from support from the private sector, for capacity-building resources and organizational skills, and academia, for research capacity to enable evidence-based decisionmaking. Child-friendly cities and communities contribute to an atmosphere of acceptance and provide the basis for social networks and community-based protection systems for children in street situations. Children in street situations should be supported to participate in local, decentralized bottom-up planning processes. MONITORING AND ACCOUNTABILITY 21. The effective implementation of legislation, policies and services relies on clear monitoring and accountability mechanisms that are transparent and robustly enforced. States should support the involvement of children in street situations, including in social accountability mechanisms, such as coalitions of State and non-State actors, committees or working groups that monitor public policy, focusing on children in street situations. Independent national human rights institutions for promoting and monitoring implementation of the Convention,11 such as children’s rights ombudspersons, must be easily accessible to children in street situations. ACCESS TO JUSTICE AND REMEDIES 22. Children in street situations who have been victims or are survivors of human rights violations have the right to effective legal and other remedies, including legal representation. This includes access to individual complaints mechanisms, by children themselves and/or represented by adults, and to judicial and non-judicial redress mechanisms at the local and national levels, including independent human rights institutions. When domestic remedies are exhausted, access to applicable international human rights mechanisms should be available, including the procedure set up by the 11 See general comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child, paras. 2 and 15.
BI A CK N D E X
297
U PV EDR A TED SION
A. ARTICLES OF OVERARCHING RELEVANCE IN A CHILD RIGHTS APPROACH Optional Protocol to the Convention on a communications procedure. Reparation measures can include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition of rights violations.12 DATA COLLECTION AND RESEARCH 23. In partnership with academia, civil society and the private sector, States should develop systematic, rightsrespecting, participatory mechanisms to collect data and share disaggregated information about children in street situations. States must ensure that the collection and use of such information does not stigmatize or harm these children. Collecting data on children in street situations should be integrated into national data collection on children, ensuring that national data do not rely solely on household surveys, but also cover children living outside household settings. Children in street situations should participate in setting the aims and agendas of research and in gathering information, analysing and disseminating research to inform policymaking, and designing specialized interventions.13 Street situations change rapidly, and research needs to be carried out periodically to ensure policy and programmes are up to date.
KE Y A R T I C LES
OF THE CONVENTION IN RELATION TO CHILDREN IN STREET SITUATIONS
OVERVIEW 24. All the rights contained in the Convention and its Optional Protocols are interrelated and indivisible, for children in street situations as for all children. The present general comment should be read in conjunction with all other general comments of the Committee. The present general comment focuses on articles that have particular significance for children in street situations and that have not previously been the focus of general comments by the Committee. For example, although provisions relating to violence, education, juvenile justice and health are clearly important, they feature here as relatively brief references to existing general comments. Some other articles, on the other hand, receive greater scrutiny given their implications for children in street situations and the fact that they have not previously been explored in detail by the Committee. The articles selected below do not imply a predominance of civil and political rights over social, economic and cultural rights for children in street situations.
12 See www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation. aspx. 13 See Office of the United Nations High Commissioner for Human Rights (OHCHR), “A Human Rights-Based Approach To Data”, available from www. ohchr.org/Documents/Issues/HRIndicators/GuidanceNoteonApproachtoData. pdf. 298
ARTICLE 2 ON NON-DISCRIMINATION Non-discrimination on the grounds of social origin, property, birth or other status 25. States must respect and ensure the rights set forth in the Convention for each child within their jurisdiction without discrimination of any kind. However, discrimination is one of the prime causes of children ending up in street situations. Children are then discriminated against on the basis of their connections with the street, that is, on the grounds of their social origin, property, birth or other status, resulting in lifelong negative consequences. The Committee interprets “other status” under article 2 of the Convention to include the street situation of a child or his or her parents and other family members. SYSTEMIC DISCRIMINATION14 26. Discrimination may be direct or indirect.15 Direct discrimination includes disproportionate policy approaches to “tackle homelessness” that apply repressive efforts to prevent begging, loitering, vagrancy, running away or survival behaviours, for example, the criminalization of status offences,16 street sweeps or “round-ups”, and targeted violence, harassment and extortion by police. Direct discrimination can include: the refusal by police to take seriously reports by children in street situations of theft or violence; discriminatory treatment within juvenile justice systems; the refusal of social workers, teachers or health care professionals to work with children in street situations; and harassment, humiliation and bullying by peers and teachers in schools. Indirect discrimination includes policies that result in exclusion from basic services, such as health and education, for example by requiring payment or the provision of identity documents. Even if children in street situations are not isolated from basic services, they might be isolated within such systems. Children can face multiple and intersecting forms of discrimination, for example, on the basis of gender, sexual orientation and gender identity/expression, disability, race, ethnicity, indigenous status,17 immigration status and other minority status, particularly as minority groups are often overrepresented among children in street situations. Children subject to discrimination are more vulnerable to violence, abuse, exploitation, sexually transmitted infections, including HIV, and their health and development are put at greater risk.18 States are reminded that guaranteeing the right to nondiscrimination is not only a passive obligation to prohibit all forms of discrimination, but also requires appropriate proactive measures to ensure effective equal opportunities for all children to enjoy the rights under the Convention. 14 See Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, para. 12. 15 Ibid., para. 10. 16 See general comments No. 4 (2003) on adolescent health and development in the context of the Convention, para. 12; and No. 10 (2007) on children’s rights in juvenile justice, paras. 8-9. 17 See general comment No. 11 (2009) on indigenous children and their rights under the Convention. 18 See general comments No. 4, para. 6; and No. 3, para. 7.
BACK
KEYWORDS INDEX
U PV EDR A TED SION This requires positive measures aimed at redressing a situation of substantive inequality.19 Systemic discrimination is responsive to, and can therefore be addressed by, legal and policy change. Children in street situations have highlighted the discrimination and negative attitudes by the public they face as a specific concern, and asked for there to be awareness-raising and educational measures to counter them. ELIMINATING DISCRIMINATION 27. Discrimination should be eliminated formally, by ensuring that a State’s constitution, laws and policies do not discriminate on the grounds of street situation, and substantively, by paying sufficient attention to children in street situations as a group who have suffered persistent prejudice and who require affirmative action.20 Temporary special measures necessary to accelerate or achieve de facto equality of children in street situations should not be considered discrimination. States should ensure: that children in street situations are equal under the law; that all discrimination on the basis of street situation is prohibited; that incitement to discriminate and harassment21 is addressed; that children in street situations and their families are not arbitrarily deprived of their property; and that curfews are legitimate, proportional and nondiscriminatory. States should also sensitize professionals, the private sector and the public to the experiences and rights of children in street situations, with the aim of positively transforming attitudes. States should support creative artistic, cultural and/or sports programmes led by, or involving, children in street situations that help to address misconceptions and break down barriers with professionals, communities — including other children — and wider society through visible mutual dialogue and interaction. This may include street circus, theatre, music, art and sports matches. States should work with print, broadcast and social media to disseminate and amplify sensitization and de-stigmatization messages and stories on the basis of a child rights approach. Public fear of crime committed by children in street situations is often mediafuelled and disproportionate to reality. The media should be actively encouraged to use accurate data and evidence and conform to child protection standards to safeguard children’s dignity, physical security and psychological integrity. ARTICLE 3 (1) ON THE BEST INTERESTS OF THE CHILD 28. The obligations attached to this right are fundamental, as part of a child rights approach, to secure the holistic physical, psychological and moral integrity of children in street situations and promote their human dignity. These children have been identified as particularly vulnerable. As the Committee has already stated, the best interests of a child in a specific situation of vulnerability will not be the same as those of all the children in the same vulnerable situation. Authorities and decision makers need to take into account the different kinds and degrees of vulnerability of each child, as each child is unique and each situation must 19 See general comment No. 14, para. 41. 20 See Committee on Economic, Social and Cultural Rights, general comment No. 20, para. 8. 21 Ibid., para. 7.
be assessed according to the child’s uniqueness.22 In this context, “vulnerability” should be considered in conjunction with the resilience and self-reliance of individual children in street situations. ARTICLE 6 ON THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT Right to life 29. Children in street situations are at risk of, inter alia: extrajudicial killings by State agents; murder by adults or peers, including murder linked to so-called vigilante justice, and association with/targeting by criminal individuals and gangs, and when the State does not prevent such crimes; exposure to potentially life-threatening conditions associated with hazardous forms of child labour, traffic accidents,23 substance abuse, commercial sexual exploitation and unsafe sexual practices; and death due to lack of access to adequate nutrition, health care and shelter. The right to life should not be interpreted narrowly.24 It concerns individuals’ entitlement to be free from acts and omissions intended or expected to cause their unnatural or premature death, and to enjoy a life with dignity. In 1999, in the case of the torture and murder by police of three children and two young people in street situations in 1990, the Inter-American Court of Human Rights ruled that arbitrary privation of life is not limited to the illegal act of homicide, but extends to the deprivation of the right to live with dignity. This conception of the right to life extends not only to civil and political rights but also to economic, social and cultural rights. The need to protect the most vulnerable people — as in the case of street children — definitely requires an interpretation of the right to life that encompasses the minimum conditions for a life with dignity.25 30. The Committee has already highlighted that growing up in conditions of absolute poverty threatens children’s survival and their health and undermines their basic quality of life.26 Right to survival and development 31. The Committee expects States to interpret “development” as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development. Children in street situations have a limited range of activities and behaviours from which to choose for their survival and development in public spaces. States’ obligations under article 6 necessitate careful attention being given to the behaviours and lifestyles of children, even if they do not conform to what specific communities or societies determine to be acceptable under prevailing cultural norms for a particular age group. Programmes can only be effective when they acknowledge the realities 22 See general comment No. 14, paras. 75-76. 23 See general comment No. 4, para. 21. 24 The preparatory work of the Convention indicate that the rights to life, survival and development under article 6 were understood as complementary and not mutually exclusive, and that the article poses positive obligations (E/ CN.4/1988/28). 25 Joint opinion, Villagrán Morales et al v. Guatemala, Inter-American Court of Human Rights, 19 November 1999. Available from www.corteidh.or.cr/docs/ casos/articulos/seriec_63_ing.pdf. 26 See general comment No. 7, para. 26.
BI A CK N D E X
299
U PV EDR A TED SION
of children in street situations.27 Interventions should support individual children in street situations to achieve their optimal development,28 maximizing their positive contribution to society. Ensuring a life with dignity 32. States have an obligation to respect the dignity of children in street situations and their right to life, survival and development by refraining from State-led violence and by decriminalizing survival behaviours and status offences; to protect children in street situations from harm caused by third parties; and to fulfil their right to life, survival and development by designing and implementing holistic long-term strategies, on the basis of a child rights approach, to secure their development to their fullest potential. States should assist trustworthy and supportive adults — such as family members or State or civil society social workers, psychologists, street workers or mentors — to help children in street situations. States should also put in place procedural and practical funeral arrangements to ensure dignity and respect for children who die on the streets.
ARTICLE 12 ON THE RIGHT TO BE HEARD29 33. Children in street situations face particular barriers in being heard, and the Committee encourages States to make proactive efforts to overcome those barriers. States and intergovernmental organizations should provide — and support civil society organizations in providing — children in street situations with a supportive and enabling environment to: be heard in judicial and administrative proceedings; carry out their own initiatives; and fully participate at the community and national levels in policy and programme conceptualization, design, implementation, coordination, monitoring, review and communication, including through the media. Interventions are of most benefit to children in street situations when the children themselves are involved actively in assessing needs, devising solutions, shaping strategies and carrying them out, rather than being seen as objects for whom decisions are made. States should also listen to relevant adults, such as family and community members, professionals and advocates, when developing prevention and response strategies. Interventions should support individual children in street situations to exercise their rights and develop skills, resilience, responsibility and citizenship, in line with their evolving capacities. States should support and encourage children in street situations to form their own child-led organizations and initiatives, which will create space for meaningful participation and representation.30 Where appropriate, and when properly safeguarded, children in street situations can raise awareness by sharing their own experiences, to reduce stigmatization and discrimination and to help prevent other children ending up in street situations. 27 See general comment No. 3, para. 11. 28 See general comment No. 5, para. 12. 29 General comment No. 12 (2009) on the right of the child to be heard. 30 See ibid., para. 128. 300
ARTICLE 4 ON APPROPRIATE MEASURES 34. Under article 4, States parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention. This applies to every child without discrimination, paying special attention to the most disadvantaged groups — which clearly includes children in street situations.31 A minimum core obligation is incumbent upon every State to ensure the satisfaction of, at the very least, minimum essential levels of each of the social, economic and cultural rights.32 States should ensure that this applies to children in street situations. Lack of available resources is not a valid argument per se for States to not comply with this core obligation. As the Committee has already stated, the immediate and minimum core obligations imposed by children’s rights shall not be compromised by any retrogressive measures, even in times of economic crisis.33 States should ensure that children in street situations are not affected by regressive measures in times of economic crisis.
ARTICLE 5 ON DIRECTION AND GUIDANCE CONSISTENT WITH EVOLVING CAPACITIES 35. To strengthen prevention, States should build the capacity of parents, extended families, legal guardians and community members to provide appropriate direction and guidance to children, helping them to take into account the child’s views, in accordance with their age and maturity; to provide a safe and supportive environment in which the child can develop; and to recognize the child as an active rights holder who is increasingly able to exercise those rights as they develop, given proper guidance and direction. The Committee has already elaborated the principle of the evolving capacities of the child: the more the child knows, has experienced and understands, the more the parent or legal guardian has to transform direction and guidance into reminders and advice, and later to an exchange on an equal footing.34 Children in street situations require particularly sensitive direction and guidance that respects their life experience. The majority of children in street situations maintain contact with families, and there is increasing evidence on effective ways to strengthen those family connections. If children in street situations have few or no positive connections with parents, extended families or legal guardians, then the role of community members, as referenced in article 5, takes on a stronger significance and this is understood to include support from trustworthy adults associated with civil society organizations. 31 See general comment No. 5, para. 8. 32 Committee on Economic, Social and Cultural Rights general comment No. 3 (1990) on the nature of States parties’ obligations, para. 10. 33 See general comment No. 19 (2016) on public budgeting for the realization of children’s rights, para. 31. 34 See general comment No. 12 (2009) on the right of the child to be heard, para. 84, and general comment No. 14, para. 44.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
B. CIVIL RIGHTS AND FREEDOMS ARTICLE 15 ON THE RIGHT TO FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY Overview 36. The realities in which children in street situations live do not fit traditional definitions or conceptualizations of childhood. They have a unique relationship to public spaces compared with other children. State restrictions on article 15 in relation to public spaces may therefore have a disproportionate impact on children in street situations. States should ensure that their access to political and public space in which to associate and peacefully assemble is not denied in a discriminatory way. Civil and political space 37. Association and peaceful assembly are essential for children in street situations to claim their rights, for example, through working children’s unions and childled associations. However, the Committee has regularly expressed concern in its concluding observations regarding the lack of political space afforded to children to speak out. This is particularly constrained for children in street situations, who often lack connections with a trustworthy adult who may be required to legally register an organization. Children in street situations may lack support in completing paperwork and gaining access to information to develop association and peaceful assembly initiatives. Children in street situations may be paid to boost numbers in protests or gatherings. They may be vulnerable to exploitation and unaware of the implications of joining such events, raising complex questions regarding the need to balance protection and participation rights. However, as expressed by the Committee in its concluding observations, this should not be used as an excuse to curtail their right to association and peaceful assembly. Article 15 requires States to empower children in street situations to exercise their participation rights and counter co-option and manipulation by adults. Public spaces 38. In addition to association and peaceful assembly in the context of civil and political rights, the Committee emphasizes the importance of respecting the choice of children in street situations to associate together in public spaces, without threat to public order, to satisfy their survival and development rights (art. 6), for rest, play and leisure (art. 31),35 to create networks and organize their social life, and as a key feature of their lives in general. For children in street situations, this type of gathering together is part of living. It cannot always be broken down into discrete activities like eating, sleeping or recreation. For children not in street situations, this cooperative coexistence with others mainly takes place in settings like the family household or school. For children in street situations, it takes place in public spaces. Such children need to have a safe space in which they can exercise their right to association, interpreted here in conjunction with other 35 See general comment No. 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts, para. 21.
rights protected under the Convention as “spending time with others in public spaces”. The Committee has explored the decreasing tolerance of children in public spaces in relation to article 31.36 In the present general comment, it extends those concerns, regarding decreasing tolerance, to the use of public spaces by children for purposes other than those covered under article 31. Restrictions on article 15 39. In accordance with article 15 (2), policing or other measures relating to public order are only permissible where such measures are taken on the basis of the law, entail individual rather than collective assessment, comply with the principle of proportionality and represent the least intrusive option. Such measures should not be applied on a group or collective basis.37 This means that harassment, violence, round-ups and street sweeps of children in street situations, including in the context of major political, public or sporting events, or other interventions that restrict or interfere with their rights to association and peaceful assembly, contravene article 15 (2). Not recognizing legally constituted working children’s unions and organizations led by children in street situations, and/or requiring licences for organizations to which children in street situations do not have reasonable access, constitute discrimination against them and are not in compliance with article 15 (2). Implementation measures 40. States should not harass or arbitrarily remove children in street situations from where they associate and peacefully assemble in public spaces. Sanctions should be imposed on those who violate this right. Specialized training is required to build the capacity of police and security forces to deal with public order situations in a way that upholds respect for the rights of children in street situations.38 Local government by-laws should be reviewed to ensure compliance with article 15 (2). States should support positive measures, such as: empowering children in street situations through child rights education and the development of life skills; preparing stakeholders to accept the views of these children in decision-making as expressed through association and assembly; and promoting the participation of these children in recreation, leisure, sports, artistic and cultural activities alongside other children in the community. Legislation should not require children in street situations’ associations or peaceful assemblies to be formally registered to incur protection under article 15.
ARTICLES 7 ON BIRTH REGISTRATION AND 8 ON IDENTITY 41. Lack of proof of identity has a negative impact on the protection of rights for children in street situations in relation to education, health and other social services, justice, inheritance and family reunification. As a minimum, States should ensure that free, accessible, simple and expeditious birth registration is available to all children at 36 Ibid., para. 37. 37 See general comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin, para. 18. Originally developed in relation to unaccompanied and separated children who have crossed an international border, in the present general comment the Committee extends this interpretation to all children in street situations. 38 See general comment No. 13, para. 44.
BI A CK N D E X
301
U PV EDR A TED SION
C. FAMILY ENVIRONMENT AND ALTERNATIVE CARE ARTICLE 20 ON THE RIGHT TO SPECIAL PROTECTION AND ASSISTANCE FOR CHILDREN DEPRIVED OF A FAMILY ENVIRONMENT Types of care
all ages. Children in street situations should be supported proactively to obtain legal identity documents. As a temporary solution, States and local governments should allow innovative and flexible solutions, such as providing informal identity cards, linked to civil society personnel/ addresses, allowing children in the meantime to gain access to basic services and protection in the justice system. Innovative solutions should be adopted to overcome the challenges faced by children in street situations, who are often highly mobile and who lack the means to keep a physical identity document safe without losing it or having it damaged or stolen.
ARTICLES 13 ON FREEDOM OF EXPRESSION AND 17 ON ACCESS TO INFORMATION 42. The right of children in street situations to have access to, seek and impart information about their rights is crucial if those rights are to be understood and realized in practice. Context-specific, accessible child rights education will help to overcome barriers to participation so their voices can be heard. Children in street situations need to have access through accessible and appropriate channels to accurate, high-quality and child-friendly information relating to: (a) the role and accountability of the State, and complaints mechanisms for redress in relation to human rights violations; (b) protection from violence; (c) sexual and reproductive health, including family planning and prevention of sexually transmitted infections; (d) healthy lifestyles, including diet and physical activity; (e) safe and respectful social and sexual behaviours; (f) prevention of accidents; and (g) the negative impacts of abuse of alcohol, tobacco, drugs and other harmful substances.
ARTICLE 16 ON PRIVACY, HONOUR AND REPUTATION 43. Children in street situations may experience limited privacy given that they have to carry out activities in public spaces. Discrimination on the grounds of their or their parents’ or family’s street situation makes them particularly vulnerable to violations of article 16. The Committee recognizes forced eviction to be a violation of article 16 of the Convention, and the Human Rights Committee has in the past recognized it to be a violation of article 17 of the International Covenant on Civil and Political Rights.39 Recommendations in paragraph 27 addressing stigmatization, and in paragraph 60 addressing nondiscriminatory and respectful treatment by the police, give guidance in relation to honour and reputation. 39 See CCPR/CO/83/KEN, para. 22, and CCPR/C/BGR/CO/3, para. 24. 302
44. For those children in street situations without primary or proxy caregivers, the State is the de facto caregiver and is obliged, under article 20, to ensure alternative care to a child temporarily or permanently deprived of his or her family environment.40 Types of care include: practical and moral support to children on the streets, through a trustworthy adult street worker or peer support, without requiring or coercing children to renounce their street connections and/or move into alternative accommodation; drop-in and community/social centres; night shelters; daycare centres; temporary residential care in group homes; foster care; family reunification; and independent living or long-term care options including, but not exclusively, adoption. Deprivation of liberty, for example, in detention cells or closed centres, is never a form of protection.
APPLYING A CHILD RIGHTS APPROACH 45. Interventions that do not respect children as active agents in the process of moving off the street into alternative care do not work: children often end up back on the streets when they run away or when placements break down. Placements fail when children in street situations are sent to unfamiliar areas to live with little-known relatives. By applying a child rights approach to the development and provision of alternative choices, States will ensure that children are not forced to depend on their street connections for their survival and/or development and that they are not forced to accept placements against their will. States should ensure, through legislation, regulation and policy directives, that the child’s views are solicited and considered in decisions regarding placements, development and review of care plans, and visits with family.41 States should respect the established international parameters that limit institutionalization as a last resort,42 ensure that children are not placed in alternative care unnecessarily and ensure that, where alternative care is provided, it is delivered under appropriate conditions responding to the rights and best interests of the child.43 States should ensure that State and civil society-run shelters and facilities are safe and of good quality. Where placement with family members is deemed, in consultation with the children in street situations themselves, to be in their best interests, careful preparation and follow-up is needed on both sides. A transitional stage between the streets and a long-term placement is often required, the length of this period being determined on a case-by-case basis with the child. Use of police or other detention cells to accommodate children owing to lack of alternative care facilities is not acceptable. 40 See general comment No. 13, paras. 33 and 35. 41 See general comments No. 12, para. 54; No. 6, para. 40; and No. 7, para. 36 (b). 42 See general comment No. 3, para. 35. 43 Guidelines for the Alternative Care of Children, GA resolution 64/142, annex.
BACK
KEYWORDS INDEX
U PV EDR A TED SION ARTICLE 9 ON SEPARATION FROM PARENTS 46. Many children in street situations live with their families, either on or off the streets, and/or maintain family connections, and they should be supported to maintain those connections. States should not separate children from their families solely on the basis of the families’ street-working or street-living status. Likewise, States should not separate babies or children born to children themselves in street situations. Financial and material poverty, or conditions directly and uniquely imputable to such poverty, should never be the only justification for the removal of a child from parental care but should be seen as a signal for the need to provide appropriate support to the family.44 To prevent long-term separation, States can support temporary, rights-respecting care options for children whose parents, for instance, migrate for certain periods of the year for seasonal employment.
ARTICLES 3 (3) ON STANDARDS FOR CARE AND PROTECTION INSTITUTIONS, SERVICES AND FACILITIES, AND 25 ON PERIODIC REVIEW OF PLACEMENTS 47. It is important to establish, maintain and monitor the quality of State and non-State services to prevent children from ending up in street situations as a result of failing to have their care and protection rights fulfilled, and for the benefit of children already in street situations. States should provide quality, rights-respecting services and support civil society organizations to do the same. NonState institutions, services and facilities for children in street situations should be supported, resourced, accredited, regulated and monitored by the State. Personnel involved in such services should be trained in accordance with paragraph 18.
ARTICLE 18 ON PARENTAL RESPONSIBILITY 48. Support for parents and legal guardians is essential to prevent children ending up in street situations, and to strengthen family reunification programmes for children already in street situations. States are obliged to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and to ensure the development of institutions, facilities and services for the care of children. States should take measures to eliminate structural forces that put pressure on families in precarious situations. Key issues to address include: improving rights-based community development in impoverished neighbourhoods; establishing comprehensive economic and social safety nets; providing safe and affordable day-care centres and other specialist services; and improving access to adequate housing and income generation for families. In addition to structural and policy approaches, vulnerable families need case-bycase solutions facilitated by well-trained professionals. States should invest in and scale up family support programmes on the basis of a child rights approach that are proved to halt the intergenerational transmission of conditions that exacerbate children ending up in street situations. States should take measures to provide
universal education on child rights and positive parenting for all parents and caregivers, prioritizing — in a nonstigmatizing way — families with children at risk of ending up in street situations. This education should include child rights, including how to listen to children and include their views in decision-making; positive child-rearing, including positive discipline skills, non-violent conflict resolution and attachment parenting; and early childhood development. See also paragraphs 35 and 49.
D. ADEQUATE STANDARD OF LIVING ARTICLE 27 ON THE RIGHT TO AN ADEQUATE STANDARD OF LIVING Support to parents, caregivers and children 49. In accordance with article 27 (3), States should ensure that all children have a standard of living adequate for their physical, mental, spiritual and moral development, to prevent them ending up in street situations and to fulfil the rights of children already in street situations. States shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. Those prescriptions leave no leeway for the discretion of States. The implementation of the above in accordance with national conditions and within the means of States parties should be interpreted in conjunction with article 4, that is, to the maximum extent of States parties’ available resources and, where needed, within the framework of international cooperation, with particular regard to the obligations of States to fulfil the minimum core obligation for social, economic and cultural rights. In terms of material assistance, children in street situations prioritize the need for a safe place to live, food and free and accessible medical care and education, through State support to parents and caregivers, particularly in relation to subsidized, adequate housing and income generation. The interpretation of article 27 (3) is not limited to measures to assist parents and others responsible for the child. The obligation to provide material assistance and support programmes in case of need should be interpreted as also meaning assistance provided directly to children. This is particularly relevant for children in street situations with non-existent or abusive family connections. Direct material assistance to children in the form of services may be provided either by the State or via State support to civil society organizations. For single-parent and reconstructed families, States’ measures to secure maintenance for the child are particularly important (see article 27 (4)).
Adequate housing 50. The right to housing is an important component of article 27 that is particularly relevant for children in street situations. It has been interpreted broadly by the Committee on Economic, Social and Cultural Rights as the right to live somewhere in security, peace and
44 See general comment No. 14, para. 62.
BI A CK N D E X
303
U PV EDR A TED SION
dignity,45 which clarifies that the concept of “adequacy” in relation to housing requires attention to: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy.46 Children are among those who suffer disproportionately from the practice of forced eviction.47 Forced evictions, including through demolition of informal or illegal housing, can make life more precarious for children, forcing them to sleep on the streets and exposing them to further rights violations. A predominant theme of consultations with children in street situations is the inadequacy and inappropriateness of some State-run “shelters”, and their high levels of violence and insecurity, such that children prefer to be on the streets.
Implementation measures 51. States should take measures to address the structural causes of poverty and income inequalities to reduce pressure on and strengthen precarious families, as a means of offering better protection for children and reducing the likelihood of children ending up in street situations. Such measures include: introducing tax and expenditure policies that reduce economic inequalities; expanding fairwage employment and other opportunities for income generation; introducing pro-poor policies for rural and urban development; eliminating corruption; introducing child-focused policies and budgeting; strengthening child-centred poverty alleviation programmes in areas known for high levels of migration; and offering adequate social security and social protection. Specific examples include child benefit programmes used in European and North American countries, and cash transfer programmes introduced in Latin American countries and widely applied in Asian and African countries. States should make efforts so that such programmes reach the most marginalized families who may not have bank accounts. Material support should be made available to parents and caregivers and also directly to children in street situations, and such mechanisms and services should be designed and implemented on the basis of a child rights approach. With regard to housing, security of tenure is essential for preventing children from coming into street situations. This includes access to adequate housing that is safe, with access to safe drinking water, sanitation and hygiene facilities. Children, including those living in informal or illegal housing, should not be subject to forced evictions prior to the provision of adequate alternative accommodation: States are required to make appropriate provisions for affected children. Child and human rights impact assessments should be a prerequisite for development and infrastructure projects to minimize the negative impacts of displacement. 45 See Committee on Economic, Social and Cultural Rights, general comment No. 4 (1991) on the right to adequate housing, para. 7. 46 Ibid., para. 8. 47 See Committee on Economic, Social and Cultural Rights, general comment No. 7 (1997) on forced evictions, para. 10. 304
E. DISABILITY AND HEALTH ARTICLE 23 ON CHILDREN WITH DISABILITIES 52. Children with disabilities end up in street situations for various reasons, including economic and social factors, and are sometimes exploited for begging. States should take all actions necessary to prevent and to explicitly criminalize such exploitation and to bring perpetrators to justice.48 Children in street situations may be at risk of developing disabilities owing to the negative impact of aspects of street life, such as violence, exploitation and substance abuse. Intellectual and psychosocial disabilities can render children in street situations particularly vulnerable to exploitation and abuse. States should adopt special protection measures, including identifying and removing barriers that prevent children with disabilities from gaining access to services, including inclusive education.
ARTICLES 24 ON HEALTH49 AND 33 ON DRUGS AND SUBSTANCE ABUSE 53. The street environment can increase vulnerability regarding physical and mental health issues.50 Challenges include disproportionately high rates of substance abuse, HIV51 and other sexually transmitted infections, pregnancy, violence (including by peers), suicidal thoughts and suicide, self-medicating with unregulated medicines and exposure to infectious diseases, pollution and traffic accidents. The Committee emphasizes the need for health education and services, including on sexual and reproductive health, tailored to the specific needs of children in street situations. Such education and services should be friendly and supportive, comprehensive, accessible, free, confidential, non-judgmental, non-discriminatory, respectful of autonomous decision by the children, and without the requirement for parental consent.52 Health services should be made accessible regardless of physical location or social status. Children in street situations should have access to free basic health-care services through universal health coverage and social protection schemes. States should increase the availability of prevention, treatment and rehabilitation services for substance abuse, including harm-reduction services, and trauma therapy and mental health services for children in street situations. These services should be staffed by professionals trained on child rights and the particular circumstances of children in street situations. States can promote properly supported peer education that can be especially effective in combating substance abuse, sexually transmitted infections and HIV. Particular attention is needed to protect children in street situations from involvement in the drug trade. 48 See general comment No. 9, para. 76. 49 General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health. 50 See general comment No. 4, para. 34. 51 See general comment No. 3, para. 30. 52 Ibid., paras. 20-21; general comments No. 4, paras. 11 and 26; and No. 15, particularly paras. 8, 11 and 28.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
G. VIOLENCE AGAINST CHILDREN AND SPECIAL PROTECTION MEASURES ARTICLES 19 AND 39 ON FREEDOM FROM ALL FORMS OF VIOLENCE56
F. EDUCATION, LEISURE AND CULTURAL ACTIVITIES ARTICLE 28 ON EDUCATION 54. Accessible, free, safe, relevant and quality education is crucial to preventing children from ending up in street situations and fulfilling the rights of children already in street situations. For many children, education represents the last connection point with wider societies. States should make adequate provision, including support to parents, caregivers and families, to ensure that children in street situations can stay in school and that their right to quality education is fully protected. A range of education options is necessary, including “second-chance education”, catch-up classes, mobile schools, vocational training linked to market research and followed up with longterm support for income generation, and pathways into formal education, through partnerships with civil society. Teachers should be trained on child rights and children in street situations, and child-centred, participatory teaching methodologies.
ARTICLE 29 ON THE AIMS OF EDUCATION53 55. The aims of education for children in street situations should comply with article 29 and include literacy, numeracy, digital literacy, life skills, child rights education, tolerance for diversity, and citizenship education. Such education is vitally important for the fulfilment of children’s rights to protection, development and participation, including strengthening their autonomy and empowering them to better negotiate situations of risk, to prevent children from ending up in street situations and for those who are in street situations. States should take measures to provide good quality, free child rights education and life skills universally to all children, through the school curriculum and through non-formal and street education, to reach out-of-school children.
ARTICLE 31 ON REST, PLAY AND LEISURE 56. The Committee highlights the right to rest, play, leisure and participation in artistic and cultural activities. Children in street situations apply their own creativity to utilize the informal setting of the streets for play opportunities.54 States should ensure they are not excluded in a discriminatory way from parks and playgrounds, for example, in relation to dress codes,55 and adopt measures to assist them in developing their creativity and practising sport, including with mobile recreation and sports facilities.
53 General comment No. 1 (2001) on the aims of education. 54 General comment No. 17. 55 Ibid., para. 49.
57. Violence in all its forms — emotional, physical or sexual — is a fundamental cause and a consequence of children ending up in street situations. Violence of all kinds permeates the lives of children in street situations on a vast scale and it is a primary concern highlighted by children themselves. Specific, immediate and urgent measures need to be taken to protect children in street situations. In conjunction with all the recommendations in general comment No. 13, such measures include: prohibiting all forms of violence, including corporal punishment; mechanisms for reaching out to vulnerable children in the process of disconnecting from family and community; mechanisms for reporting violence, discrimination and other forms of rights violations; and mechanisms for holding perpetrators of violence to account, whether State or non-State, individuals or groups. Special mechanisms might have to be established to deal with individuals reported by these children as threats to their well-being, such as some members of the police and those involved in organized crime and drug trafficking.
ARTICLES 34-36 ON SEXUAL ABUSE, SEXUAL EXPLOITATION, TRAFFICKING AND OTHER EXPLOITATION 58. Children in street situations are particularly vulnerable to sexual violence and exploitation, and the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography is particularly relevant for them. Gender-sensitive responses should be made by professionals who are trained in understanding the specific circumstances of children in street situations. Children may have ended up in street situations through trafficking for sexual or labour exploitation, and/or may be vulnerable to such trafficking, as well as trafficking for body parts, and other forms of exploitation, once they are on the streets.
ARTICLE 32 ON CHILD LABOUR 59. The Committee urges States to implement the provisions of article 32 (2) of the Convention, and the International Labour Organization Minimum Age Convention, 1973 (No. 138), and Worst Forms of Child Labour Convention, 1999 (No. 182), to protect children in street situations from economic exploitation and the worst forms of child labour. Action against child labour should comprise comprehensive measures, including the provision of support enabling children to transition into education and guaranteeing an adequate standard of living for them and their families. Such measures should be developed in collaboration with children in street situations and other key stakeholders to reflect children’s best interests and to ensure they do not have any inadvertent negative impact on children’s survival or development. The criminalization of begging or unlicensed trading can result in worse 56 See general comments No. 3. paras. 19 and 36-37; No. 4, paras. 2 and 23; No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment; and No. 13.
BI A CK N D E X
305
U PV EDR A TED SION
forms of survival behaviours, such as commercial sexual exploitation. Savings schemes to develop budgeting skills and safeguard earnings for children in street situations are beneficial.
ARTICLES 37 AND 40 ON JUVENILE JUSTICE 60. Children in street situations are more likely to be targeted, criminalized and end up in the juvenile or adult justice system and less likely to benefit from diversion, alternatives to detention or restorative practices as they are unable to afford bail and may have no responsible adults to vouch for them. Police misconduct, such as harassment (including stealing children’s money and possessions, rounding them up or arbitrarily moving children on, often on the orders of their superiors and/or politicians), corruption, extortion (for money or sex) and physical, psychological or sexual violence are common rights violations that States should criminalize as a matter of urgency. The Committee is concerned about the application of “zero tolerance” policies criminalizing children in street situations and resulting in forced institutionalization. States should support community policing, with an emphasis on protection rather than punishment of children in street situations, and adopt a multicultural police service. States should guarantee all rights to all children, including those in street situations, in the context of a restorative rather than punitive juvenile justice system.57
ARTICLE 38 ON ARMED CONFLICT
AND COOPERATION
DISSEMINATION 62. The Committee recommends that States widely disseminate the present general comment within government, legal and administrative structures, to children in street situations, parents and caregivers, professional organizations, communities, the private sector and civil society. All channels of dissemination, including print media, the Internet, and children’s own communication means, such as storytelling and peer education, should be used. This will necessitate translating it into relevant languages, including sign languages, Braille and easy-to-understand formats for children with disabilities and limited literacy levels. It also requires making culturally appropriate and child-friendly versions and pictorial rather than text-based versions available, holding workshops and seminars, implementing age- and disability-specific support to discuss its implications and how best to implement it, and incorporating it into the training of all professionals working for and with children in street situations. States are also encouraged to include information on children in street situations in their reports to the Committee.
INTERNATIONAL COOPERATION
61. The Optional Protocol to the Convention on the involvement of children in armed conflict is relevant as children in street situations are vulnerable to recruitment into armed forces or armed groups. Conflicts may lead to children ending up in street situations through the disruption of social networks, family separation, displacement from communities or rejection of demobilized child combatants from communities. In relation to prevention, child rights education, including peace education, and antirecruitment initiatives need to reach children in street situations. Interventions to minimize the impact of armed conflict need to mitigate proactively the separation of children from families, and family tracing programmes should be prioritized. Disarmament, demobilization and reintegration programmes for children should take into account the dynamics of street-connectedness as a cause and a consequence of children’s involvement in armed conflict. 57 See general comments No. 6, para. 61; and No. 10, paras. 6, 8-9 and 16. 306
D ISSEMIN ATIO N
63. The Committee calls upon States to strengthen international commitment, cooperation and mutual assistance in preventing children from ending up in street situations and protecting children already in street situations. This includes identifying and sharing rightsbased practices that have been shown to be effective, research, policies, monitoring and capacity-building. Cooperation requires the involvement of States, United Nations bodies and agencies, regional organizations, civil society organizations (including child-led organizations and academics), children, the private sector and professional groups. The Committee encourages those actors to foster continuous, high-level policy dialogues and research in relation to quality, evidence-based interventions for prevention and response. This includes dialogues at the international, national, regional and local levels. Such cooperation may need to address the protection of children crossing borders as migrants, refugees and asylum seekers and as victims/survivors of cross-border trafficking.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
307
U PV EDR A TED SION
308
BACK
KEYWORDS INDEX
number 22
U PV EDR A TED SION
INTRODUCTION
A. BACKGROUND
1. The present joint general comment was adopted at the same time as joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return. While that general comment and the present one are stand-alone documents in their own right, the two complement each other and should be read and implemented together. The drafting process included a series of global and regional consultations held between May and July 2017 with representatives of key stakeholders and experts, including children and migrant organizations, in Bangkok, Beirut, Berlin, Dakar, Geneva, Madrid and Mexico City. In addition, the Committees received more than 80 written contributions from States, United Nations agencies and entities, civil society organizations, national human rights institutions and other stakeholders from every region of the world between November 2015 and August 2017. 2. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Convention on the Rights of the Child contain legally binding obligations that relate both in general and specific terms to the protection of the rights of children in the context of international migration 3. In the context of international migration, children may be in a situation of double vulnerability as children and as children affected by migration who a) are migrants themselves, either alone or with their families, b) were born to migrant parents in countries of destination or c) remain in their country of origin while one or both parents have migrated to another country. Additional vulnerabilities could relate to their national, ethnic or social origin; gender; sexual orientation or gender identity; religion; disability; migration or residence status; citizenship status; age; economic status; political or other opinion; or other status. 4. By virtue of their complementary mandates and shared commitment to strengthening protection of all children in the context of international migration, both Committees decided to develop these joint general comments. While the present comment is based on the provisions of both Conventions, it is important to underline that the human rights norms clarified herein are built on the provisions and principles of the Convention on the Rights of the Child. Therefore, the authoritative guidance contained in the present joint general comment is equally applicable to all States parties to the Convention on the Rights of the Child and/or the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 310
5. The present joint general comment builds on the increasing attention that both Committees have given to the rights of children in the context of international migration through a number of initiatives, including: a) Committee on the Rights of the Child general comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin, which includes a set of recommendations specifically for those migrant children outside their country of origin who are unaccompanied and separated; b) A day of general discussion held in Geneva in September 2012 by the Committee on the Rights of the Child, on the rights of all children in the context of international migration, for which the Committee drafted a background paper and adopted a report, with conclusions and recommendations;1 c) The endorsement in 2016 by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families of the recommended principles to guide actions concerning children on the move and other children affected by migration.2 In addition, both Committees are members of the Inter-Agency Working Group to End Child Immigration Detention; d) The increasing number of recommendations made by both Committees in recent years to States parties to their respective Conventions on a variety of human rights issues that affect children’s rights in the context of international migration. 6. The present joint general comment also builds on other United Nations resolutions and reports, various outputs of the United Nations human rights mechanisms and United Nations, intergovernmental and civil society initiatives relating to children in the context of international migration, including: a) The statement by the Committee on Economic, Social and Cultural Rights on the duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights (E/C.12/2017/1), in which the Committee recalled in particular that “protection from discrimination cannot be made conditional upon an individual having a regular status in the host country”, and also recalled that “all children within a State, including those with an undocumented status, had a right to receive education and access to adequate food and affordable health care”; b) The New York Declaration for Refugees and Migrants, in which the Heads of State and Government undertook to protect the human rights and fundamental freedoms of all refugee and migrant children, regardless of their status, and giving primary consideration at all times to the best interests of the child, and to comply with their obligations under the Convention on the Rights of the Child.3 1 See www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2012.aspx. 2 Available from www.ohchr.org/Documents/HRBodies/CMW/Recommendedprinciple_EN.pdf. 3 General Assembly resolution 71/1, para. 32.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
GENERAL MEASURES
OF IMPLEMENTATION OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES AND THE CONVENTION ON THE RIGHTS OF THE CHILD FOR THE PROTECTION OF CHILDREN IN THE CONTEXT OF INTERNATIONAL MIGRATION
B. OBJECTIVE AND SCOPE OF THE JOINT GENERAL COMMENT 7. The objective of the present joint general comment is to provide authoritative guidance on legislative, policy and other appropriate measures that should be taken to ensure full compliance with the obligations under the Conventions to fully protect the rights of children in the context of international migration. 8. The Committees acknowledge that the phenomenon of international migration affects all regions of the world and all societies and, increasingly, millions of children. While migration can bring positive outcomes to individuals, families and broader communities in countries of origin, transit, destination and return, the drivers of migration, in particular unsafe and/or irregular migration, are often directly related to violations of human rights, including the rights of the child as recognized in several human rights treaties, in particular the Convention on the Rights of the Child. 9. The present joint general comment addresses the human rights of all children in the context of international migration, whether they have migrated with their parents or primary caregivers, are unaccompanied or separated, have returned to their country of origin, were born to migrant parents in countries of transit or destination, or remained in their country of origin while one or both parents migrated to another country, and regardless of their or their parents’ migration or residence status (migration status). The nondiscrimination principle of the Convention on the Rights of the Child obliges States parties to respect and ensure the rights set forth in the Convention to all children, whether they are considered, inter alia, migrants in regular or irregular situations, asylum seekers, refugees, stateless and/or victims of trafficking, including in situations of return or deportation to the country of origin, irrespective of the child’s or the parents’ or legal guardians’ nationality, migration status or statelessness.4 10. The present joint general comment should be read in conjunction with other relevant general comments issued by the Committees; building upon those general comments and the evolving challenges children face in the context of international migration, it should also be read as authoritative guidance from the Committees as regards the rights of children in the context of international migration. 4 See Committee on the Rights of the Child, general comment No. 6, para. 12.
11. States should ensure that children in the context of international migration are treated first and foremost as children. States parties to the Conventions have a duty to comply with their obligations set out therein to respect, protect and fulfil the rights of children in the context of international migration, regardless of their or their parents’ or legal guardians’ migration status. 12. The obligations of States parties under the Conventions apply to each child within their jurisdictions, including the jurisdiction arising from a State exercising effective control outside its borders. Those obligations cannot be arbitrarily and unilaterally curtailed either by excluding zones or areas from the territory of a State or by defining particular zones or areas as not or only partly under the jurisdiction of the State, including in international waters or other transit zones where States put in place migration control mechanisms. The obligations apply within the borders of the State, including with respect to those children who come under its jurisdiction while attempting to enter its territory. 13. The Committees stress the primacy of the rights of the child in the context of international migration and therefore the need for the Conventions to be integrated by States into migration-related frameworks, policies, practices and/ or other measures. 14. The Committees encourage States parties to ensure that the authorities responsible for children’s rights have a leading role, with clear decision-making power, on policies, practices and decisions that affect the rights of children in the context of international migration. Comprehensive child protection systems at the national and local levels should mainstream into their programmes the situation of all children in the context of international migration, including in countries of origin, transit, destination and return. In addition to the mandates of child protection bodies, authorities responsible for migration and other related policies that affect children’s rights should also systematically assess and address the impacts on and needs of children in the context of international migration at every stage of policymaking and implementation. 15. States parties should develop policies aimed at fulfilling the rights of all children in the context of international migration, in particular regarding migration management objectives or other administrative or political considerations. 16. States parties should develop a systematic rightsbased policy on the collection and public dissemination of qualitative and quantitative data on all children in the context of international migration in order to inform a
BI A CK N D E X
311
U PV EDR A TED SION
FUNDAMENTAL
PRINCIPLES OF THE CONVENTIONS WITH REGARD TO THE RIGHTS OF CHILDREN IN THE CONTEXT OF INTERNATIONAL MIGRATION
comprehensive policy aimed at the protection of their rights. Such data should be disaggregated by nationality, migration status, gender, age, ethnicity, disability and all other relevant statuses to monitor intersectional discrimination. The Committees stress the importance of developing indicators to measure the implementation of the rights of all children in the context of international migration, including through a human rights-based approach to data collection and analysis on the causes of unsafe migration of children and/or families. Such information should be available for all stakeholders, including children, in full respect of privacy rights and data protection standards. Civil society organizations and other concerned actors should be able to participate in the process of collecting and evaluating data. 17. Children’s personal data, in particular biometric data, should only be used for child protection purposes, with strict enforcement of appropriate rules on collection, use and retention of, and access to, data. The Committees urge due diligence regarding safeguards in the development and implementation of data systems, and in the sharing of data between authorities and/or countries. States parties should implement a “firewall” and prohibit the sharing and use for immigration enforcement of the personal data collected for other purposes, such as protection, remedy, civil registration and access to services. This is necessary to uphold data protection principles and protect the rights of the child, as stipulated in the Convention on the Rights of the Child. 18. The Committees are of the opinion that, in order to fulfil the rights of all children in the context of international migration, the following elements should be part of the policies and practices to be developed and implemented: (a) comprehensive, inter-institutional policies between child protection and welfare authorities and other key bodies, including on social protection, health, education, justice, migration and gender, and between regional, national and local governments; (b) adequate resources, including budgetary, aimed at ensuring effective implementation of policies and programmes; and (c) continuous and periodic training of child protection, migration and related officials on the rights of children, migrants and refugees and on statelessness, including intersectional discrimination.
19. States parties to the Convention on the Rights of the Child have a duty to ensure that the principles and provisions therein are fully reflected and given legal effect in relevant domestic legislation, policies and practices (art. 4). In all actions concerning children, States should be guided by the overarching principles of non-discrimination (art. 2); the best interests of the child (art. 3); the right to life, survival and development (art. 6); and the right of the child to express his or her views in all matters affecting him or her, and to have those views taken into account (art. 12). States should adopt measures, including legislative and other policy tools, aimed at ensuring that those principles are upheld in practice and brought into the mainstream of all policies affecting children in the context of international migration, and in the interpretation and analysis of the specific obligations as clarified in joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return. 20. The Committees reaffirm the application of articles 41 of the Convention on the Rights of the Child and 81 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and reiterate that the provisions in domestic and international legislation that are the most conducive to the realization of the rights of all children in the context of international migration shall apply in cases where standards differ. Furthermore, a dynamic interpretation of the Conventions based on a child- centred approach is necessary to ensure their effective implementation and the respect, protection and fulfilment of the rights of all children in the context of the increasing number of challenges that migration poses for children.
A. NON-DISCRIMINATION
(ARTICLES 1 AND 7 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLE 2 OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 21. The principle of non-discrimination is fundamental and, in all its facets, applies with respect to children in the context of international migration.5 All children involved in or affected by international migration are entitled to the enjoyment of their rights, regardless of the children’s or their parents’, legal guardians’ or family members’ age, gender, gender identity or sexual orientation, ethnic or national origin, disability, religion, economic status, migration/documentation status, statelessness, race, colour, marital or family status, health status or other social 5 See Committee on the Rights of the Child, general comment No. 6, para. 18.
312
BACK
KEYWORDS INDEX
U PV EDR A TED SION conditions, activities, expressed opinions, or beliefs. This principle is fully applicable to every child and his or her parents, regardless of the reason for moving, whether the child is accompanied or unaccompanied, on the move or otherwise settled, documented or undocumented or with any other status. 22. The principle of non-discrimination shall be at the centre of all migration policies and procedures, including border control measures, and regardless of the migration status of children or their parents. Any differential treatment of migrants shall be lawful and proportionate, in pursuit of a legitimate aim and in line with the child’s best interests and international human rights norms and standards. Similarly, States parties should ensure that migrant children and their families are integrated into receiving societies through the effective realization of their human rights and access to services in an equal manner with nationals. 23. The Committees recommend that States parties adopt adequate measures to combat discrimination on any grounds and to protect children from multiple and intersecting forms of discrimination, throughout the migration process, including in and after returning to the country of origin, and/or as a result of their migration status. In order to achieve such a goal, States parties should strengthen efforts to combat xenophobia, racism and discrimination and take all appropriate measures to combat such attitudes and practices, and to collect and disseminate accurate, reliable and updated data and information in that regard. States should also promote the social inclusion and full integration of families affected by international migration into the host society and implement programmes for improving knowledge about migration and addressing any negative perceptions regarding migrants, with the aim of protecting children affected by international migration and their families from violence, discrimination, harassment and bullying, and fulfilling their access to rights enshrined in the Conventions and other conventions ratified by each State.6 In doing so, special attention should be paid to gender-specific and any other challenges and vulnerabilities that may intersect. 24. States parties should conduct a robust gender analysis of the specific impacts of migration policies and programmes on children of all genders. States parties should review and amend any gender-discriminatory restrictions on migration in law or practice that limit opportunities for girls or that do not recognize their capacity and autonomy to make their own decisions. 25. The Committees recommend that the States parties put special emphasis on the policies and related regulations about the prevention of discriminatory practices towards migrant and refugee children with disabilities and the implementation of necessary policies and programmes for ensuring the full enjoyment of all human rights and fundamental freedoms of migrant and refugee children with disabilities on an equal basis with children who are nationals of the States, and taking into consideration the provisions enshrined in the Convention on the Rights of Persons with Disabilities. 6 Ibid., para. 70.
26. The Committees are of the view that addressing only de jure discrimination will not necessarily ensure de facto equality. Therefore, States parties shall fulfil the rights under the Conventions for children in the context of international migration by adopting positive measures to prevent, diminish and eliminate the conditions and attitudes that cause or perpetuate de facto discrimination against them. They should systematically record incidences of discrimination against children and/or their families in the context of international migration, and investigate and sanction such conduct appropriately and effectively.
B. BEST INTERESTS OF THE CHILD
(ARTICLE 3 OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 27. Article 3 (1) of the Convention on the Rights of the Child places an obligation on both the public and the private spheres, courts of law, administrative authorities and legislative bodies to ensure that the best interests of the child are assessed and taken as a primary consideration in all actions affecting children. As the Committee on the Rights of the Child has stated in paragraph 6 of its general comment No. 14, the right of the child to have his or her best interests taken into account as a primary consideration is a substantive right, an interpretative legal principle and a rule of procedure, and it applies to children both as individuals and as a group. In that general comment, which has since been considered as the key guidance for States parties on this issue, the Committee also elaborates on the implementation of the principle of the best interests of the child. 28. Recognizing that the best interests of the child — once assessed and determined — might conflict with other interests or rights (e.g. of other children, the public and parents) and that potential conflicts have to be resolved on a case-by-case basis, carefully balancing the interests of all parties and finding a suitable compromise, the Committee stresses in paragraph 39 of its general comment No. 14 that the right of the child to have his or her best interests taken as a primary consideration means that the child’s interests have high priority and are not just one of several considerations. Therefore, a larger weight must be attached to what serves the child best. It further states in paragraph 82 that the purpose of assessing and determining the best interests of the child is to ensure the full and effective enjoyment of the rights recognized in the Convention on the Rights of the Child, and the holistic development of the child. 29. States parties shall ensure that the best interests of the child are taken fully into consideration in immigration law, planning, implementation and assessment of migration policies and decision-making on individual cases, including in granting or refusing applications on entry to or residence in a country, decisions regarding migration enforcement and restrictions on access to social rights by children and/ or their parents or legal guardians, and decisions regarding family unity and child custody, where the best interests of the child shall be a primary consideration and thus have high priority.
BI A CK N D E X
313
U PV EDR A TED SION 30. In particular, the best interests of the child should be ensured explicitly through individual procedures as an integral part of any administrative or judicial decision concerning the entry, residence or return of a child, placement or care of a child, or the detention or expulsion of a parent associated with his or her own migration status. 31. In order to implement the best interests principle in migration-related procedures or decisions that could affect children, the Committees stress the need to conduct systematically best-interests assessments and determination procedures as part of, or to inform, migration- related and other decisions that affect migrant children. As the Committee on the Rights of the Child explains in its general comment No. 14, the child’s best interests should be assessed and determined when a decision is to be made. A “best-interests assessment” involves evaluating and balancing all the elements necessary to make a decision in the specific situation for a specific individual child or group of children. A “bestinterests determination” is a formal process with strict procedural safeguards designed to determine the child’s best interests on the basis of the best-interests assessment. In addition, assessing the child’s best interests is a unique activity that should be undertaken in each individual case and in the light of the specific circumstances of each child or group of children, including age, sex, level of maturity, whether the child or children belong to a minority group and the social and cultural context in which the child or children find themselves. 32. The Committees stress that States parties should: a) Give high priority to the child’s best interests in their legislation, policy and practice; b) Ensure that the principle of the best interests of the child is appropriately integrated, consistently interpreted and applied through robust, individualized procedures in all legislative, administrative and judicial proceedings and decisions, and in all migration policies and programmes that are relevant to and have an impact on children, including consular protection policies and services. Adequate resources should be put in place in order to ensure this principle is applied in practice; c) Ensure that all best-interests assessments and determinations developed and conducted give appropriate weight to fulfilling the rights of the child — in the short and long terms — in the decision-making processes affecting children; and ensure due process safeguards are established, including the right to free, qualified and independent legal representation. The best-interests assessment should be carried out by actors independent of the migration authorities in a multidisciplinary way, including a meaningful participation of authorities responsible for child protection and welfare and other relevant actors, such as parents, guardians and legal representatives, as well as the child; d) Develop procedures and define criteria to provide guidance to all relevant persons involved with migration procedures on determining the best interests of the child and on giving them due weight as a primary consideration, 314
including in entry, residence, resettlement and return procedures, and develop mechanisms aimed at monitoring its proper implementation in practice; e) Assess and determine the best interests of the child at the different stages of migration and asylum procedures that could result in the detention or deportation of the parents due to their migration status.7 Best-interests determination procedures should be put in place in any decision that would separate children from their family, and the same standards applied in child custody, when the best interests of the child should be a primary consideration. In adoption cases, the best interests of the child shall be the paramount consideration; f) Conduct a best-interests assessment on a caseby-case basis in order to decide, if needed, and in accordance with the Guidelines for the Alternative Care of Children,8 the type of accommodation that would be most appropriate for an unaccompanied or separated child, or children with parents. In that process, communitybased care solutions should be prioritized. Any measure that constrains children’s liberty in order to protect them, e.g. placement in secure accommodation, should be implemented within the child protection system with the same standards and safeguards; be strictly necessary, legitimate and proportionate to the aim of protecting the individual child from harming him or herself or others; be part of a holistic care plan; and be disconnected from migration-enforcement policies, practices and authorities; g) Conduct a best-interests determination in cases that could lead to the expulsion of migrant families due to their migration status, in order to evaluate the impact of deportation on children’s rights and development, including their mental health; h) Ensure that children are identified promptly in border controls and other migration- control procedures within the State’s jurisdiction, and that anyone claiming to be a child is treated as such, promptly referred to child protection authorities and other relevant services, and appointed a guardian, if unaccompanied or separated; i) Provide guidance to all relevant authorities on the operationalization of the principle of the best interests of the child for migrant children, including children in transit, and develop mechanisms aimed at monitoring its proper implementation in practice; j) Develop and put into practice, with regard to unaccompanied children and children with families, a bestinterests determination procedure aimed at identifying and applying comprehensive, secure and sustainable solutions,9 including further integration and settlement in the country of current residence, repatriation to the country of origin or resettlement in a third country. Such solutions may include medium-term options and ensuring that there are possibilities for children and families to gain access to 7 See Committee on the Rights of the Child, report of the 2012 day of general discussion on the rights of all children in the context of international migration, paras. 73-74. Available from www.ohchr.org/Documents/HRBodies/CRC/ Discussions/2012/DGD2012ReportAndRecommendatio ns.pdf. 8 General Assembly resolution 64/142, annex. 9 A comprehensive, secure and sustainable solution is one that, to the greatest extent possible, caters to the long-term best interests and welfare of the child and is sustainable and secure from that perspective. The outcome should aim to ensure that the child is able to develop into adulthood, in an environment that will meet his or her needs and fulfil his or her rights as defined by the Convention on the Rights of the Child.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
C. RIGHT TO BE HEARD, EXPRESS HIS OR HER VIEWS AND PARTICIPATION
(ARTILCE 12 OF THE CONVENTION ON THE RIGHTS OF THE CHILD)
secure residence status in the best interests of the child. Best-interest determination procedures should be guided by child protection authorities within child protection systems. Possible solutions and plans should be discussed and developed together with the child, in a child-friendly and sensitive manner, in accordance with Committee on the Rights of the Child general comment No. 12 (2009) on the right of the child to be heard; k) If determined that it is in the best interests of the child to be returned, an individual plan should be prepared, together with the child where possible, for his or her sustainable reintegration. The Committees stress that countries of origin, transit, destination and return should develop comprehensive frameworks with dedicated resources for the implementation of policies and comprehensive inter-institutional coordination mechanisms. Such frameworks should ensure, in cases of children returning to their countries of origin or third countries, their effective reintegration through a rightsbased approach, including immediate protection measures and long-term solutions, in particular effective access to education, health, psychosocial support, family life, social inclusion, access to justice and protection from all forms of violence. In all such situations, a quality rights-based follow-up by all involved authorities, including independent monitoring and evaluation, should be ensured. The Committees highlight that return and reintegration measures should be sustainable from the perspective of the child’s right to life, survival and development. 33. States parties are obliged, in line with article 3 of the Convention on the Rights of the Child, to ensure that any decision to return a child to his or her country of origin is based on evidentiary considerations on a case-bycase basis and pursuant to a procedure with appropriate due process safeguards, including a robust individual assessment and determination of the best-interests of the child. This procedure should ensure, inter alia, that the child, upon return, will be safe and provided with proper care and enjoyment of rights. Considerations such as those relating to general migration control cannot override best- interests considerations. The Committees stress that return is only one of the various sustainable solutions for unaccompanied and separated children and children with their families. Other solutions include integration in countries of residence — either temporarily or permanently — according to each child’s circumstances, resettlement in a third country, e.g. based on family reunification grounds, or other solutions that could be identified on a case-by-case basis, by referring to existing cooperation mechanisms, such as the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children.
34. Article 12 of the Convention on the Rights of the Child underscores the importance of children’s participation, providing for children to express their views freely and to have those views taken into account with due weight, according to age, maturity and the evolving capacity of the child. 35. The Committee on the Rights of the Child, in its general comment No. 12, underlines that adequate measures to guarantee the right to be heard should be implemented in the context of international migration, as children who come to a country could be in a particularly vulnerable and disadvantaged situation.10 For that reason, it is critical to implement fully their right to express their views on all aspects affecting their lives, including as an integral part of immigration and asylum proceedings, and for their views to be given due weight. Children may have their own migration projects and migration-driving factors, and policies and decisions cannot be effective or appropriate without their participation. The Committee also emphasizes that these children should be provided with all relevant information, inter alia, on their rights, the services available, means of communication, complaints mechanisms, the immigration and asylum processes and their outcomes. Information should be provided in the child’s own language in a timely manner, in a child- sensitive and age-appropriate manner, in order to make their voice heard and to be given due weight in the proceedings.11 36. States parties should appoint a qualified legal representative for all children, including those with parental care, and a trained guardian for unaccompanied and separated children, as soon as possible on arrival, free of charge.12 Accessible complaints mechanisms for children should be ensured. Throughout the process, children should be offered the possibility to be provided with a translator in order that they may express themselves fully in their native language and/or receive support from someone familiar with the child’s ethnic, religious and cultural background. These professionals should be trained on the specific needs of children in the context of international migration, including gender, cultural, religious and other intersecting aspects. 37. States parties should take all measures appropriate to fully promote and facilitate the participation of children, including providing them with the opportunity to be heard in any administrative or judicial proceeding related to their or their families’ cases, including any decision on care, shelter or migration status. Children should be heard independently of their parents, and their individual circumstances should be included in the consideration of the family’s cases. Specific best-interests assessments should be carried out in those procedures, and the child’s specific reasons for the migration should be taken into 10 See Committee on the Rights of the Child, general comment No. 12, para. 123. 11 Ibid., para. 124. 12 Ibid., paras. 123-124.
BI A CK N D E X
315
U PV EDR A TED SION account. Regarding the significant relationship between the right to be heard and the best interests of the child, the Committee on the Rights of the Child has already stated that there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives.13 38. States parties should take all appropriate measures aimed at ensuring children’s right to be heard in the immigration procedures concerning their parents, in particular where the decision could affect the children’s rights, such as the right to not be separated from their parents, except when such separation is in their best interests (see art. 9 of the Convention on the Rights of the Child). 39. States parties should adopt measures directed at facilitating the participation of all children in the context of international migration in the design, implementation, monitoring and evaluation of policies that could directly or indirectly affect them, as individuals or a group, including in the fields of social policies and social services. Initiatives should be taken to prepare girls and transgender children to participate actively, effectively and equally with boys at all levels of social, economic, political and cultural leadership. In countries of origin, the participation of children is paramount in developing policies on and in processes aimed at addressing drivers of the migration of children and/or their parents and developing policies in that regard. In addition, States should adopt measures aimed at empowering children affected by international migration to participate on different levels, through consultations, collaborations and child-led initiatives, and at ensuring that civil society organizations, including children associations and child-led organizations, can participate effectively in policy dialogues and processes on children in the context of international migration, at the local, national, regional and international levels. Any limitations on children’s freedom of association, including through legally establishing associations, should be removed.
D. RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT (ARTICLE 9 OF
THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLE 6 OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 40. Article 6 of the Convention on the Rights of the Child highlights the States parties’ obligations to ensure the right of life, survival and development of the child, including the physical, mental, moral, spiritual and social dimensions of his or her development.14 At any point during the migratory process, a child’s right to life and survival may be at stake owing to, inter alia, violence as a result of organized crime, violence in camps, push-back or interception operations, excessive use of force of border authorities, refusal of 13 Ibid., para. 74. 14 See Committee on the Rights of the Child, general comment No. 5 (2003) on general measures of implementation of the Convention, para. 12. 316
vessels to rescue them, or extreme conditions of travel and limited access to basic services. Unaccompanied and separated children may face further vulnerabilities and can be more exposed to risks, such as gender-based, sexual and other forms of violence and trafficking for sexual or labour exploitation. Children travelling with their families often also witness and experience violence. While migration can provide opportunities to improve living conditions and escape from abuses, migration processes can pose risks, including physical harm, psychological trauma, marginalization, discrimination, xenophobia and sexual and economic exploitation, family separation, immigration raids and detention.15 At the same time, the obstacles children may face in gaining access to education, adequate housing, sufficient safe food and water or health services can negatively affect the physical, mental, spiritual, moral and social development of migrant children and children of migrants. 41. The Committees acknowledge that the lack of regular and safe channels for children and families to migrate contribute to children taking life-threatening and extremely dangerous migration journeys. The same is true for border control and surveillance measures that focus on repression rather than facilitating, regulating and governing mobility, including detention and deportation practices, lack of timely family reunification opportunities and lack of avenues for regularization. 42. In the view of the Committees, the obligation of States parties under article 6 of the Convention on the Rights of the Child and article 9 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families include the prevention and reduction — to the maximum extent possible — of migration-related risks faced by children, which may jeopardize a child’s right to life, survival and development. States, especially those of transit and destination, should devote special attention to the protection of undocumented children, whether unaccompanied and separated or with families, and to the protection of asylum-seeking children, stateless children and child victims of transnational organized crime, including trafficking, sale of children, commercial sexual exploitation of children and child marriage. States should also consider the specific vulnerable circumstances that could face migrant children on the basis of their gender and other factors, such as poverty, ethnicity, disability, religion, sexual orientation, gender identity or others, that may aggravate the child’s vulnerability to sexual abuse, exploitation, violence, among other human rights abuses, throughout the entire migratory process. Specific policies and measures, including access to child-friendly, gendersensitive and safe judicial and non-judicial remedies, should be put in place in order to fully protect and assist such children, aiming to facilitate their ability to resume their lives with their rights as children fully respected, protected and fulfilled. 43. The Committees underline the interrelation between articles 2, 6 and 27 (1) of the Convention on the Rights of the Child; States parties should ensure that children in the context of international migration, regardless of their 15 See Committee on the Rights of the Child, general comment No. 20 (2016) on the implementation of the rights of the child during adolescence, para. 76.
BACK
KEYWORDS INDEX
U PV EDR A TED SION status or that of their parents, have a standard of living adequate for their physical, mental, spiritual and moral development. 44. The Committees are concerned that policies or practices that deny or restrict basic rights, including labour rights and other social rights, to adult migrants owing to their nationality, statelessness, ethnic origin or migration status may directly or indirectly affect children’s right to life, survival and development. Such policies would also obstruct the design of comprehensive migration policies and the efforts made to bring migration into the mainstream of development policies. Therefore, in line with article 18 of the Convention on the Rights of the Child, States parties should ensure that children’s development, and their best interests, are taken fully into account when it comes to policies and decisions aimed at regulating their parents’ access to social rights, regardless of their migration status. Similarly, children’s right to development, and their best interests, should be taken into consideration when States address, in general or individually, the situation of migrants residing irregularly, including through the implementation of regularization mechanisms as a means to promote integration and prevent exploitation and marginalization of migrant children and their families.
E. NON-REFOULEMENT, PROHIBITION OF COLLECTIVE EXPULSION
(ARTICLES 9, 10 AND 22 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 6, 22 AND 37 OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 45. States parties should respect non-refoulement obligations deriving from international human rights, humanitarian, refugee and customary international law.16 The Committees highlight that the principle of nonrefoulement has been interpreted by international human rights bodies, regional human rights courts and national courts to be an implicit guarantee flowing from the obligations to respect, protect and fulfil human rights. It prohibits States from removing individuals, regardless of migration, nationality, asylum or other status, from their jurisdiction when they would be at risk of irreparable harm upon return, including persecution, torture, gross violations of human rights or other irreparable harm. 46. The Committees are concerned that some States parties choose to recognize a narrow definition of the non-refoulement principle. The Committees have already pointed out17 that States shall not reject a child at a border or return him or her to a country where there are substantial grounds for believing that he or she is at real 16 Article 33 of the 1951 Convention relating to the Status of Refugees, article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance. 17 See Committee on the Rights of the Child, general comment No. 6, para. 27, and Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, general comment No. 2 (2013) on the rights of migrant workers in an irregular situation and members of their families, para. 50.
risk of irreparable harm, such as, but by no means limited to, those contemplated under articles 6 (1) and 37 of the Convention on the Rights of the Child, either in the country to which removal is to be effected or in any country to which the child may subsequently be removed. Such nonrefoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate from non-State actors or whether such violations are directly intended or are the indirect consequence of States parties’ action or inaction. 47. The Committees recall that article 22 (1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and other international and regional human rights instruments forbid collective expulsions and require that each case that could eventually become an expulsion be examined and decided individually, ensuring the effective fulfilment of all the due process guarantees and the right to access to justice. States parties should adopt all measures necessary in order to prevent collective expulsions of migrant children and families.
INTERNATIONAL
COOPERATION
48. The Committees stress that a comprehensive interpretation of the Conventions should lead States parties to develop bilateral, regional and global cooperation in order to ensure the rights of all children in the context of international migration, taking into consideration the guidance developed in the present joint general comment. 49. The Committees recognize the importance of coordinating efforts among countries of origin, transit, destination and return, and their roles and responsibilities in addressing the needs of children in the context of international migration and in safeguarding their rights, with the best interests of the child being a primary consideration. 50. The Committees reaffirm that, in all international, regional or bilateral cooperation agreements on border management and migration governance, the impacts of such initiatives on children’s rights should be duly considered and adaptations made as necessary to uphold the rights of the child. The Committees are concerned by the increase in bilateral or multilateral cooperation agreements that focus on restricting migration, which have demonstrably negative impacts on children’s rights, and instead urge cooperation that facilitates safe, orderly and regular migration with full respect for human rights. 51. States parties should also avail themselves of technical cooperation from the international community, including from the United Nations agencies and entities and regional organizations for the implementation of migration policies in respect of children in line with the present joint general comment.
BI A CK N D E X
317
U PV EDR A TED SION
DISSEMINATION AND USE TREATY RATIFICATION OR ACCESSION AND RESERVATIONS
OF THE JOINT GENERAL COMMENT AND REPORTING
55. States that have not yet done so are encouraged to ratify or accede to:
52. States parties should disseminate widely the present joint general comment to all stakeholders, in particular parliaments, governmental authorities, including child protection and migration authorities and personnel, and the judiciary, at all national, regional and local levels. It should be made known to all children and all relevant professionals and stakeholders, including those working for and with children (i.e., judges, lawyers, police and other law enforcement entities, teachers, guardians, social workers, staff of public or private welfare institutions and shelters, and health-care providers), the media and civil society at large. 53. The present joint general comment should be translated into relevant languages, and child-friendly/ appropriate versions and formats accessible to persons with disabilities should be made available. Conferences, seminars, workshops and other events should be held to share good practices on how best to implement it. It should also be incorporated into the formal pre- and in-service training of all concerned professionals and to technical staff in particular, as well as to child protection and migration authorities and personnel, and should be made available to all national and local human rights institutions, and other human rights civil society organizations.
a) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, including by making the binding declarations under articles 76 and 77; b) The Convention on the Rights of the Child; c) The Optional Protocol to the Convention on the Rights of the Child on the sale of children child prostitution and child pornography; d) The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; e) The Optional Protocol to the Convention on the Rights of the Child on a communications procedure. 56. States parties are encouraged to review, modify and/or withdraw reservations made upon ratification or accession, with a view to ensuring that children in the context of international migration fully enjoy all of their rights under both Conventions.
54. States parties should include in their periodic reports under article 73 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and article 44 of the Convention on the Rights of the Child information about the measures guided by the present joint general comment that they have implemented and their outcomes.
318
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
319
number 23
U PV EDR A TED SION
A. AGE
IN T R O DUC T I ON 1 1. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Convention on the Rights of the Child contain legally binding obligations that relate both in general and specifically to the protection of the human rights of children and migrants. Both Conventions contain several provisions that establish specific obligations related to the rights of children in the context of international migration in the countries of origin, transit, destination and return.2 2. The present joint general comment was adopted at the same time as joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration. While that general comment and the present one are standalone documents in their own right, the two complement each other and should be read and implemented together. The drafting process included a series of global and regional consultations held between May and July 2017 with representatives of key stakeholders and experts, including children and migrant organizations, in Bangkok, Beirut, Berlin, Dakar, Geneva, Madrid and Mexico City. In addition, the Committees received more than 80 written contributions from States, United Nations agencies and entities, civil society organizations, national human rights institutions and other stakeholders from every region of the world between November 2015 and August 2017.
LEGAL OBLIGATIONS OF STATES PARTIES TO PROTECT THE RIGHTS OF CHILDREN IN THE CONTEXT OF INTERNATIONAL MIGRATION IN THEIR TERRITORY
322
3. The definition of the child under the Convention on the Rights of the Child provides rights and protection until the age of 18. The Committees are concerned that children between 15 and 18 years tend to be provided much lower levels of protection, and are sometimes considered as adults or left with an ambiguous migration status until they reach 18 years of age. States are urged to ensure that equal standards of protection are provided to every child, including those above the age of 15 years and regardless of their migration status. In accordance with the Guidelines for Alternative Care of Children3, States should provide adequate follow-up, support and transition measures for children as they approach 18 years of age, particularly those leaving a care context, including by ensuring access to long-term regular migration status and reasonable opportunities for completing education, access to decent jobs and integrating into the society they live in4. The child should be adequately prepared for independent living during this transition period, and competent authorities shall ensure adequate follow-up of the individual situation. The Committees additionally encourage States to take protective and support measures beyond the age of 18 years. 4. To make an informed estimate of age, States should undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or other professionals who are skilled in combining different aspects of development. Such assessments should be carried out in a prompt, child-friendly, gender- sensitive and culturally appropriate manner, including interviews of children and, as appropriate, accompanying adults, in a language the child understands. Documents that are available should be considered genuine unless there is proof to the contrary, and statements by children and their parents or relatives must be considered. The benefit of the doubt should be given to the individual being assessed. States should refrain from using medical methods based on, inter alia, bone and dental exam analysis, which may be inaccurate, with wide margins of error, and can also be traumatic and lead to unnecessary legal processes. States should ensure that their determinations can be reviewed or appealed to a suitable independent body.
B. RIGHT TO LIBERTY
(ARTICLES 16 AND 17 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLE 37 OF THE CONVENTION ON THE RIGHTS OF THE CHILD)
3 General Assembly resolution 64/142, annex. 4 See Committee on the Rights of the Child, report of the 2012 day of general discussion on the rights of all children in the context of international migration, paras. 68-69. Available from www.ohchr.org/Documents/HRBodies/CRC/ Discussions/2012/DGD2012ReportAndRecommendatio ns.pdf.
BACK
KEYWORDS INDEX
U PV EDR A TED SION 5. Every child, at all times, has a fundamental right to liberty and freedom from immigration detention.5 The Committee on the Rights of the Child has asserted that the detention of any child because of their or their parents’ migration status constitutes a child rights violation and contravenes the principle of the best interests of the child.6 In this light, both Committees have repeatedly affirmed that children should never be detained for reasons related to their or their parents’ migration status and States should expeditiously and completely cease or eradicate the immigration detention of children. Any kind of child immigration detention should be forbidden by law and such prohibition should be fully implemented in practice. 6. Immigration detention is understood by the Committees as any setting in which a child is deprived of his/her liberty for reasons related to his/her, or his/her parents’, migration status, regardless of the name and reason given to the action of depriving a child of his or her liberty, or the name of the facility or location where the child is deprived of liberty.7 “Reasons related to migration status” is understood by the Committees to be a person’s migratory or residence status, or the lack thereof, whether relating to irregular entry or stay or not, consistent with the Committees’ previous guidance. 7. In addition, both the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families have emphasized that children should not be criminalized or subject to punitive measures, such as detention, because of their or their parents’ migration status.8 Irregular entry and stay do not constitute crimes per se against persons, property or national security.9 Criminalizing irregular entry and stay exceeds the legitimate interest of States parties to control and regulate migration, and leads to arbitrary detention. 8. The Committee on the Rights of the Child, in relation to unaccompanied and separated children, stated in 2005 that children should not be deprived of their liberty and that detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status or lack thereof.10 5 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 78. See also the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), in particular principle 21, para. 46, and guideline 21. 6 Deprivation of liberty is defined in article 4 (2) of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment as “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”. Rule 11 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty states: “For the purposes of the Rules, the following definitions should apply: … (b) The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.” 7 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 78. 8 See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, general comment No. 2 (2013) on the rights of migrant workers in an irregular situation and members of their families, para. 24. 9 See Committee on the Rights of the Child, general comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin, para. 61. 10 See A/HRC/28/68, para. 80.
9. The Committees emphasize the harm inherent in any deprivation of liberty and the negative impact that immigration detention can have on children’s physical and mental health and on their development, even when they are detained for a short period of time or with their families. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that “within the context of administrative immigration enforcement … the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children”.11 10. Article 37 (b) of the Convention of the Rights of the Child establishes the general principle that a child may be deprived of liberty only as a last resort and for the shortest appropriate period of time. However, offences concerning irregular entry or stay cannot under any circumstances have consequences similar to those derived from the commission of a crime.12 Therefore, the possibility of detaining children as a measure of last resort, which may apply in other contexts such as juvenile criminal justice, is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development. 11. Instead, States should adopt solutions that fulfil the best interests of the child, along with their rights to liberty and family life, through legislation, policy and practices that allow children to remain with their family members and/or guardians in non-custodial, community-based contexts while their immigration status is being resolved and the children’s best interests are assessed,13 as well as before return. When children are unaccompanied, they are entitled to special protection and assistance by the State in the form of alternative care and accommodation in accordance with the Guidelines for the Alternative Care of Children14 When children are accompanied, the need to keep the family together is not a valid reason to justify the deprivation of liberty of a child. When the child’s best interests require keeping the family together, the imperative requirement not to deprive the child of liberty extends to the child’s parents and requires the authorities to choose non-custodial solutions for the entire family.15 12. Consequently, child and family immigration detention 11 See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, general comment No. 2, para. 24. See also Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 78. Along the same lines, see the report of the Working Group on Arbitrary Detention (A/HRC/13/30), para. 58; and the report of the Special Rapporteur on the human rights of migrants (A/HRC/20/24), paras. 31 and 38. 12 See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, general comment No. 2, para. 24. See also Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 78. Along the same lines, see the report of the Working Group on Arbitrary Detention (A/HRC/13/30), para. 58; and the report of the Special Rapporteur on the human rights of migrants (A/HRC/20/24), paras. 31 and 38. 13 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 79. 14 See Committee on the Rights of the Child, general comment No. 6, paras. 39-40. 15See A/HRC/20/24, para. 40; Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Advisory Opinion OC−21/14 of 19 August 2014, Inter-American Court of Human Rights, para. 159; and A/HRC/28/68, para. 80.
BI A CK N D E X
323
U PV EDR A TED SION
should be prohibited by law and its abolishment ensured in policy and practice. Resources dedicated to detention should be diverted to non-custodial solutions carried out by competent child protection actors engaging with the child and, where applicable, his or her family. The measures offered to the child and the family should not imply any kind of child or family deprivation of liberty and should be based on an ethic of care and protection, not enforcement.16They should focus on case resolution in the best interests of the child and provide all the material, social and emotional conditions necessary to ensure the comprehensive protection of the rights of the child, allowing for children’s holistic development. Independent public bodies, as well as civil society organizations, should be able to regularly monitor these facilities or measures. Children and families should have access to effective remedies in case any kind of immigration detention is enforced. 13. In the view of the Committees, child protection and welfare actors should take primary responsibility for children in the context of international migration. When a migrant child is first detected by immigration authorities, child protection or welfare officials should immediately be informed and be in charge of screening the child for protection, shelter and other needs. Unaccompanied and separated children should be placed in the national/local alternative care system, preferably in family-type care with their own family when available, or otherwise in community care when family is not available. These decisions have to be taken within a child-sensitive due process framework, including the child’s rights to be heard, to have access to justice and to challenge before a judge any decision that could deprive him or her of liberty,17 and should take into account the vulnerabilities and needs of the child, including those based on their gender, disability, age, mental health, pregnancy or other conditions.
C. DUE PROCESS GUARANTEES AND ACCESS TO JUSTICE
(ARTICLES 16, 17 AND 18 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 12 AND 40 OF THE CONVENTION ON THE RIGHTS OF THE CHILD)
14. Access to justice is a fundamental right in itself and a prerequisite for the protection and promotion of all other human rights, and as such it is of paramount importance that every child in the context of international migration is empowered to claim his/her rights. The responsibility of States parties requires structural and proactive interventions to ensure fair, effective and prompt access to justice. The Committee on the Rights of the Child, in its general comment No. 5 (2003) on general measures of implementation of the Convention, held that an effective remedy requires effective, child-sensitive procedures. It 16 See the Guidelines for the Alternative Care of Children. 17 See United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, in particular guideline 18 (see A/HRC/30/37, para. 100). 324
further outlined that such procedures should guarantee the adoption of certain specific measures in order to ensure that administrative and judicial proceedings are adapted to the needs and development of children, and that the best interests of the child is a primary consideration in all such proceedings. 15. The Committees are of the view that States should ensure that their legislation, policies, measures and practices guarantee child-sensitive due process in all migration and asylum administrative and judicial proceedings affecting the rights of children and/or those of their parents. All children, including children accompanied by parents or other legal guardians, should be treated as individual rights holders, their child-specific needs considered equally and individually and their views appropriately heard and given due weight. They should have access to administrative and judicial remedies against decisions affecting their own situation or that of their parents, to guarantee that all decisions are taken in their best interests18 Measures should be taken to avoid undue delays in migration/ asylum procedures that could negatively affect children’s rights, including family reunification procedures. Unless it is contrary to the child’s best interests, speedy proceedings should be encouraged, provided that this does not restrict any due process guarantees. 16. Children should be able to bring complaints before courts, administrative tribunals or other bodies at lower levels that are easily accessible to them, e.g., in child protection and youth institutions, schools and national human rights institutions, and should be able to receive advice and representation in a child-friendly manner by professionals with specialized knowledge of children and migration issues when their rights have been violated. States should ensure standardized policies to guide authorities in offering free, quality legal advice and representation for migrant, asylum-seeking and refugee children, including equal access for unaccompanied and separated children in local authority care and undocumented children.19 17. More specifically, and in particular in the context of best interest assessments and within best interest determination procedures, children should be guaranteed the right to: a) Access to the territory, regardless of the documentation they have or lack, and to be referred to authorities in charge of evaluating their needs in terms of protection of their rights, ensuring their procedural safeguards; b) Be notified of the existence of a proceeding and of the decision adopted in the context of the immigration and asylum proceedings, its implications and possibilities for appeal; c) Have the immigration proceedings conducted by a specialized official or judge, and any interviews carried out in person by professionals trained in communicating with children; d) Be heard and take part in all stages of the proceedings 18 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 75. 19 Human Rights Council resolution 25/6. See also Advisory Opinion OC−21/14 of 19 August 2014, Inter-American Court of Human Rights, paras. 108-143.
BACK
KEYWORDS INDEX
U PV EDR A TED SION ON THE RIGHTS OF THE CHILD)
1. BIRTH REGISTRATION
and be assisted without charge by a translator and/or interpreter; e) Have effective access to communication with consular officials and consular assistance, and to receive child-sensitive rights-based consular protection; f) Be assisted by an attorney trained and/or experienced in representing children at all stages of the proceedings and communicate freely with the representative, and have access to free legal aid; g) Have the application and procedures involving children be treated as a priority, while ensuring ample time to prepare for proceedings and that all due process guarantees are preserved; h) Appeal the decision to a higher court or independent authority, with suspensive effect; i) For unaccompanied and separated children, have appointed a competent guardian, as expeditiously as possible, who serves as a key procedural safeguard to ensure respect for their best interests;20 j) Be fully informed throughout the entire procedure, together with their guardian and legal adviser, including information on their rights and all relevant information that could affect them. 18. The Committees recognize the negative impacts on children’s well-being of having an insecure and precarious migration status. The Committees therefore recommend that States ensure that there are clear and accessible status determination procedures for children to regularize their status on various grounds (such as length of residence). 19. The Committees are of the opinion that a comprehensive interpretation of the Convention on the Rights of the Child with articles 7 (a), 23 and 65 (2) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families should imply the development and implementation of effective consular protection policies which include specific measures directed to protecting children’s rights, such as providing ongoing training to consular staff on the two Conventions, as well as on other human rights instruments, and promoting protocols on consular protection services.
D. RIGHT TO A NAME, IDENTITY, AND A NATIONALITY (ARTICLE 29 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 7 AND 8 OF THE CONVENTION
20 See Committee on the Rights of the Child, general comment No. 6, paras. 20-21 and 33-38.
20. The lack of birth registration may have many negative impacts on the enjoyment of children’s rights, such as child marriage, trafficking, forced recruitment and child labour. Birth registrations may also help to achieve convictions against those who have abused a child. Unregistered children are at particular risk of becoming stateless when born to parents who are in an irregular migration situation, due to barriers to acquiring nationality in the country of origin of the parents as well as to accessing birth registration and nationality at the place of their birth.21 21. The Committees urge States parties to take all necessary measures to ensure that all children are immediately registered at birth and issued birth certificates, irrespective of their migration status or that of their parents. Legal and practical obstacles to birth registration should be removed, including by prohibiting data sharing between health providers or civil servants responsible for registration with immigration enforcement authorities; and not requiring parents to produce documentation regarding their migration status. Measures should also be taken to facilitate late registration of birth and to avoid financial penalties for late registration. Children who have not been registered should be ensured equal access to health care, protection, education and other social services. 22. Should a child’s identity documents have been procured irregularly on his or her behalf and the child requests the restoration of his or her identity documents, States parties are encouraged to adopt flexible measures in the best interests of the child, specifically by issuing corrected documents and avoiding prosecution where falsification has been committed.
2. RIGHT TO A NATIONALITY AND SAFEGUARDS AGAINST STATELESSNESS 23. Article 7 of the Convention on the Rights of the Child places emphasis on the prevention of statelessness by specifying that States parties shall ensure the implementation of the rights of a child to be registered, to a name, to acquire a nationality and to know and be cared for by his or her parents. The same right is enshrined for all children of migrant workers in article 29 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 24. While States are not obliged to grant their nationality to every child born in their territory, they are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he or she is born. A key measure is the conferral of nationality to a child born on the territory of the State, at birth or as early as possible after birth, if the child would otherwise be stateless. 25. Nationality laws that discriminate with regard to the transmission or acquisition of nationality on the basis 21 According to article 1 of the Convention relating to the Status of Stateless Persons, a stateless person is “a person who is not considered as a national by any State under the operation of its law”.
BI A CK N D E X
325
U PV EDR A TED SION of prohibited grounds, including in relation to the child and/or his or her parents’ race, ethnicity, religion, gender, disability and migration status, should be repealed. Furthermore, all nationality laws should be implemented in a non-discriminatory manner, including with regard to residence status in relation to the length of residency requirements, to ensure that every child’s right to a nationality is respected, protected and fulfilled. 26. States should strengthen measures to grant nationality to children born in their territory in situations where they would otherwise be stateless. When the law of a mother’s country of nationality does not recognize a woman’s right to confer nationality on her children and/or spouse, children may face the risk of statelessness. Likewise, where nationality laws do not guarantee women’s autonomous right to acquire, change or retain their nationality in marriage, girls in the situation of international migration who married under the age of 18 years may face the risk of being stateless, or be confined in abusive marriages out of fear of being stateless. States should take immediate steps to reform nationality laws that discriminate against women by granting equal rights to men and women to confer nationality on their children and spouses and regarding the acquisition, change or retention of their nationality.
E. FAMILY LIFE (ARTICLES 14, 17 AND 44 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 9, 10, 11, 16, 18, 19, 20 AND 27 (4) OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 27. The right to protection of family life is recognized in international and regional human rights instruments, including the Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Therefore, this right should be fully respected, protected and fulfilled in relation to every child without any kind of discrimination, regardless of their residency or nationality status. States should comply with their international legal obligations in terms of maintaining family unity, including siblings, and preventing separation, which should be a primary focus, in accordance with the Guidelines for the Alternative Care of Children. Protection of the right to a family environment frequently requires that States not only refrain from actions which could result in family separation or other arbitrary interference in the right to family life, but also take positive measures to maintain the family unit, including the reunion of separated family members. The Committee on the Rights of the Child, in its general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, states that the term “parents” must be interpreted in a broad sense to include biological, adoptive or foster parents, or, where applicable, the members of the extended family or community as provided for by local custom.
1. NON-SEPARATION 326
28. The right to family unity for migrants may intersect with States’ legitimate interests in making decisions on the entry or stay of non-nationals in their territory. However, children in the context of international migration and families should not be subjected to arbitrary or unlawful interference with their privacy and family life.22 Separating a family by deporting or removing a family member from a State party’s territory, or otherwise refusing to allow a family member to enter or remain in the territory, may amount to arbitrary or unlawful interference with family life.23 29. The Committees are of the view that the rupture of the family unit by the expulsion of one or both parents based on a breach of immigration laws related to entry or stay is disproportionate, as the sacrifice inherent in the restriction of family life and the impact on the life and development of the child is not outweighed by the advantages obtained by forcing the parent to leave the territory because of an immigration-related offence.24 Migrant children and their families should also be protected in cases where expulsions would constitute arbitrary interference with the right to family and private life.25 The Committees recommend that States provide avenues for status regularization for migrants in an irregular situation residing with their children, particularly when a child has been born or has lived in the country of destination for an extended period of time, or when return to the parent’s country of origin would be against the child’s best interests. Where the expulsion of parents is based on criminal offences, their children’s rights, including the right to have their best interests be a primary consideration and their right to be heard and have their views taken seriously, should be ensured, also taking into account the principle of proportionality and other human rights principles and standards. 30. The Committees are concerned about cases where children are separated from parents and placed in alternative care by child protection systems when there are no concerns related to parental abuse and neglect. Financial and material poverty, or conditions directly and uniquely attributable to such poverty, should never be the sole justification for removing a child from parental care, for receiving a child into alternative care or for preventing a child’s social reintegration. In this regard, States should provide appropriate assistance to parents and legal guardians in the performance of their child- rearing responsibilities, including by providing social benefits and child allowances and other social support services regardless of the migration status of the parents or the child. 31. The Committees are also of the opinion that based on article 18 of the Convention on the Rights of the Child, a comprehensive approach to the child’s right to 22 See Human Rights Committee, general comment No. 15 (1986) on the position of aliens under the Covenant, para. 7. 23 Human Rights Committee, communications No. 2009/2010, Ilyasov v. Kazakhstan, Views adopted on 23 July 2014; No. 2243/2013, Husseini v. Denmark, Views adopted on 24 October 2014; No. 1875/2009, M.G.C. v. Australia, Views adopted on 26 March 2015; No. 1937/2010, Leghaei and others v. Australia, Views adopted on 26 March 2015; and No. 2081/2011, D.T. v. Canada, Views adopted on 15 July 2006. 24 See Advisory Opinion OC−21/14 of 19 August 2014, Inter-American Court of Human Rights, para. 280. 25 See Committee on the on the Protection of the Rights of All Migrant Workers and Members of Their Families, general comment No. 2 (2013), para. 50.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
a family environment in the context of migration should contemplate measures directed at enabling parents to fulfil their duties with regard to child development. Considering that irregular migration status of children and/ or their parents may obstruct such goals, States should make available regular and non-discriminatory migration channels, as well as provide permanent and accessible mechanisms for children and their families to access longterm regular migration status or residency permits based on grounds such as family unity, labour relations, social integration and others.26
2. FAMILY REUNIFICATION 32. Under article 10 of the Convention on the Rights of the Child, States parties are to ensure that applications for family reunification are dealt with in a positive, humane and expeditious manner, including facilitating the reunification of children with their parents. When the child’s relations with his or her parents and/or sibling(s) are interrupted by migration (in both the cases of the parents without the child, or of the child without his or her parents and/or sibling(s)), preservation of the family unit should be taken into account when assessing the best interests of the child in decisions on family reunification.27 33. In the case of undocumented children in the context of international migration, States shall develop and implement guidelines, taking particular care that time limits, discretionary powers, and/or lack of transparency in administration procedures should not hinder the child’s right to family reunification. 34. In the case of unaccompanied or separated children, including children separated from their parents due to the enforcement of immigration laws, such as the parents’ detention, efforts to find sustainable, rights-based solutions for them should be initiated and implemented without delay, including the possibility of family reunification. If the child has family in the country of destination, the country of origin or a third country, child protection and welfare authorities in countries of transit or destination should contact family members as soon as possible. The decision as to whether a child should be reunited with his or her family in the country of origin, transit and/or destination should be based on a robust assessment in which the child’s best interests are upheld as a primary consideration and family reunification is taken into consideration, and which includes a sustainable reintegration plan where the child is guaranteed to participate in the process. 35. Family reunification in the country of origin should not be pursued where there is a “reasonable risk” that such a return would lead to the violation of the human rights of 26 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 91. See also article 69 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 27 See Committee on the Rights of the Child, general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, para. 66.
the child. When family reunification in the country of origin is not in the best interests of the child or not possible due to legal or other obstacles to return, the obligations under article 9 and 10 of the Convention of the Rights of the Child come into effect and should govern the State’s decisions on family reunification therein. Measures for parents to reunify with their children and/or regularize their status on the basis of their children’s best interests should be put in place. Countries should facilitate family reunification procedures in order to complete them in an expeditious manner, in line with the best interests of the child. It is recommended that States apply best interest determination procedures in finalizing family reunification. 36. When a country of destination refuses family reunification to the child and/or to his/her family, it should provide detailed information to the child, in a childfriendly and age-appropriate manner, on the reasons for the refusal and on the child’s right to appeal. 37. Children that remain in their countries of origin may end up migrating irregularly and unsafely, seeking to be reunited with their parents and/or older siblings in destination countries. States should develop effective and accessible family reunification procedures that allow children to migrate in a regular manner, including children remaining in countries of origin who may migrate irregularly. States are encouraged to develop policies that enable migrants to regularly be accompanied by their families in order to avoid separation. Procedures should seek to facilitate family life and ensure that any restrictions are legitimate, necessary and proportionate. While this duty is primarily for receiving and transit countries, States of origin should also take measures to facilitate family reunification. 38. The Committees are aware that insufficient financial resources often hinder the exercise of the right to family reunification and that the lack of proof of adequate family income can constitute a barrier to reunion procedures. States are encouraged to provide adequate financial support and other social services to those children and their parent(s), siblings and, where applicable, other relatives.
F. PROTECTION FROM ALL FORMS OF VIOLENCE AND ABUSE, INCLUDING EXPLOITATION, CHILD LABOUR AND ABDUCTION, AND SALE OR TRAFFIC IN CHILDREN (ARTICLES 11 AND 27 OF THE
BI A CK N D E X
327
INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 19, 26, 32, 34, 35 AND 36 OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 39. Children in the context of international migration, in particular those who are undocumented, stateless, unaccompanied or separated from their families, are particularly vulnerable, throughout the migratory process, to different forms of violence, including neglect, abuse, kidnapping, abduction and extortion, trafficking, sexual exploitation, economic exploitation, child labour, begging or involvement in criminal and illegal activities, in countries of origin, transit, destination and return. Such children are at risk of experiencing violence by State or non-State actors or witnessing violence against their parents or others, particularly when travelling or residing in an irregular manner. The Committees draw the attention of States to article 6 of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children under which the judicial or administrative authorities of the Contracting State have jurisdiction to take measures directed to the protection of the child’s person or property with regard to refugee children and children who, due to disturbances occurring in their country, are internationally displaced and are present on the territory as a result of their displacement. 40. The Committees are also aware that restrictive migration or asylum policies, including criminalization of irregular migration, the absence of sufficient safe, orderly, accessible and affordable regular migration channels or lack of adequate child protection systems, render migrant and asylum-seeking children, including unaccompanied or separated children, particularly vulnerable to suffering violence and abuse during their migration journey and in the countries of destination. 41. It is essential that States take all necessary measures to prevent and combat the illicit transfer and non-return of children as well as the worst forms of child labour, including all forms of slavery, commercial sexual exploitation, the use of children for illicit activities, including begging, and hazardous work, and protect them from violence and economic exploitation. The Committees recognize that children face gender-specific risks and vulnerabilities which should be identified and specifically addressed. In many contexts, girls may be even more vulnerable to trafficking, especially for purposes of sexual exploitation. Additional measures should be taken to address the particular vulnerability of girls and boys, including those who might have a disability, as well as children who are lesbian, gay, bisexual, transgender or intersex persons, to trafficking for the purposes of sexual exploitation and abuse.
42. Undocumented migrant children and parents dependent on residence or work permits, who can easily be made undocumented by their sponsor/employer, face risks of being reported to the immigration authorities by public service providers or other officials or by private individuals. This limits their enjoyment of human rights, including protection and access to justice, and makes them more vulnerable to violence and to labour and other types of exploitation and abuse,28 and could be the result of policies prioritizing the detection of migrants in irregular status instead of their protection from violence, abuse and exploitation, making children more vulnerable to experiencing violence or witnessing violence against a family member. Among other measures, effective firewalls between child protection services and immigration enforcement should be ensured. 43. For migrant children for whom there are indications of trafficking, sale or other forms of sexual exploitation or who may be at risk of such acts or of child marriage, States should adopt the following measures: - Establish early identification measures to detect victims of sale, trafficking and abuse, as well as referral mechanisms, and in this regard carry out mandatory training for social workers, border police, lawyers, medical professionals and all other staff who come into contact with children - Where different migration statuses are available, the most protective status (i.e., asylum or residence on humanitarian grounds) should be applied and granting such status should be determined on a case-by-case basis in accordance with the best interests of the child - Ensure that the granting of residence status or assistance to migrant child victims of sale, trafficking or other forms of sexual exploitation is not made conditional on the initiation of criminal proceedings or their cooperation with law enforcement authorities. 44. Furthermore, States should take the following actions to ensure the full and effective protection of migrant children from all forms of violence and abuse: - Take effective measures to ensure that they are protected from any form of slavery and commercial sexual exploitation and from being used for illicit activities or from any work that would jeopardize their health, safety or morals, including by becoming party to relevant conventions of the International Labour Organization - Take effective measures to protect them from all forms of violence and abuse, regardless of their migration status - Recognize and address the gender-specific vulnerable situations of girls and boys and children with disabilities as potential victims of trafficking for sexual, labour and all other forms of exploitation - Ensure comprehensive protection, support services and access to effective redress mechanisms, including psychosocial assistance and information about those 28 See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, general comment No. 2, para. 2.
U PV EDR A TED SION remedies, for migrant children and their families reporting cases of violence, abuse or exploitation to police or other relevant authorities, regardless of their migration status; children and parents must be able to safely report to police or other authorities as victims or witnesses without any risk of immigration enforcement as a result - Recognize the important role that can be played by community services and civil society organizations in regard to the protection of migrant children - Develop comprehensive policies aimed at addressing the root causes of all forms of violence, exploitation and abuse against migrant children, including adequate resources for their proper implementation
G. RIGHT TO PROTECTION FROM ECONOMIC EXPLOITATION, INCLUDING UNDERAGE AND HAZARDOUS WORK, EMPLOYMENT CONDITIONS AND SOCIAL SECURITY
(ARTICLES 25, 27, 52, 53, 54 AND 55 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 26 AND 32 OF THE CONVENTION ON THE RIGHTS OF THE CHILD)
labour rights and immigration enforcement 47. With respect to social security, migrant children and their families shall have the right to the same treatment granted to nationals, insofar as they fulfil the requirements provided for by the applicable legislation of the State and the applicable bilateral and multilateral treaties. The Committees consider that in cases of necessity, States should provide emergency social assistance to migrant children and their families regardless of their migration status, without any discrimination. 48. In cases of migrant families, including with children born to migrant parents, the Committees stress the interdependence between parental responsibilities for the upbringing and development of the child under articles 5 and 18 of the Convention on the Rights of the Child and labour rights for migrant workers under relevant provisions of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Therefore, States should, as far as possible, take measures to ensure that the rights at work of migrant parents, including those in an irregular situation, are fully respected.
H. RIGHT TO AN ADEQUATE STANDARD OF LIVING (ARTICLE 45 OF THE
45. With due respect to international labour standards related to the minimum age for admission to employment and the prohibition and elimination of the worst forms of child labour, not all work carried out by migrant children who are above legal working age is exploitative or undertaken in hazardous conditions. The Committees remind States that migrant children above working age, irrespective of their status, should enjoy equal treatment to that of national children in respect of remuneration, other conditions of work and terms of employment. 46. States should take all appropriate legislative and administrative measures, including a gender dimension, to regulate and protect the employment of migrant children with respect to the minimum age of employment and hazardous work. Given the specific risk to which migrant children are exposed, States shall also ensure that, in both law and practice, all necessary measures, including the provision of appropriate penalties, be taken by the competent authority to guarantee the effective enforcement of the provisions of the Convention on the Rights of the Child and relevant international standards and that migrant children: - Enjoy fair terms of employment as well as decent working conditions, in line with internationally accepted standards - Enjoy specific protective measures regulating the hours and conditions under which children can work - Are subject to periodic medical examinations attesting to their fitness for work - Have access to justice in case of violation of their rights by public or private actors, including by ensuring effective complaints mechanisms and a firewall between
INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLE 27 OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 49. States should ensure that children in the context of international migration have a standard of living adequate for their physical, mental, spiritual and moral development. As provided in article 27 (3) of the Convention on the Rights of the Child. States, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. 50. States parties should develop detailed guidelines on standards of reception facilities, assuring adequate space and privacy for children and their families. States should take measures to ensure an adequate standard of living in temporary locations, such as reception facilities and formal and informal camps, ensuring that these are accessible to children and their parents, including persons with disabilities, pregnant women and breastfeeding mothers. States should ensure that residential facilities do not restrict children’s day-to-day movements unnecessarily, including de facto restriction of movement. 51. States should not interfere with children’s right to housing by means of measures which prevent migrants from renting properties. Measures should be taken to ensure that migrant children, regardless of their status, are able to access homeless shelters. 52. States should develop procedures and standards to establish firewalls between public or private service providers, including public or private housing providers,
BI A CK N D E X
329
U PV EDR A TED SION and immigration enforcement authorities. Similarly, States should ensure that irregular migrant children are not criminalized for exercising their right to housing and that private actors, such as landlords and civil society organizations, who facilitate their exercise of this right are also not criminalized. 53. The Convention on the Rights of the Child stipulates that States parties shall respect and ensure the rights set forth in the Convention to each child within its jurisdiction without discrimination of any kind; this includes discrimination against children on the basis of their or their parents’ migration status. The Committees therefore urge States parties to provide equitable access to economic, social and cultural rights. States are encouraged to expeditiously reform legislation, policies and practices that discriminate against migrant children and their families, including those in an irregular situation, or prevent them from effectively accessing services and benefits, for example social assistance.29
I. RIGHT TO HEALTH (ARTICLES 28 AND 45 OF
THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 23, 24 AND 39 OF THE CONVENTION ON THE RIGHTS OF THE CHILD) 54. The Committees acknowledge that a child’s physical and mental health can be affected by a variety of factors, including structural determinants such as poverty, unemployment, migration and population displacements, violence, discrimination and marginalization. The Committees are aware that migrant and refugee children may experience severe emotional distress and may have particular and often urgent mental health needs. Children should therefore have access to specific care and psychological support, recognizing that children experience stress differently from adults.
55. Every migrant child should have access to health care equal to that of nationals, regardless of their migration status. This includes all health services, whether preventive or curative, and mental, physical or psychosocial care, provided in the community or in health-care institutions. States have an obligation to ensure that children’s health is not undermined as a result of discrimination, which is a significant factor contributing to vulnerability; the implications of multiple forms of discrimination should also be addressed.30 Attention should be paid to addressing the gender-specific impacts of reduced access to services31. In addition, migrant children should be provided full access to age- appropriate sexual and reproductive health information and services. 56. States are encouraged to emphasize a holistic approach to the right to health. Their national plans, policies, and strategies should address the health needs of migrant children and the vulnerable situations in which they may find themselves. Migrant children should 29 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 86. 30 See general comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health, paras. 5 and 8. 31 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 86. 330
have access to health services without being required to present a residence permit or asylum registration. Administrative and financial barriers to accessing services should be removed, including through the acceptance of alternative means of proving identity and residence, such as testimonial evidence.32 In addition, the Committees urge States to prohibit the sharing of patients’ data between health institutions and immigration authorities as well as immigration enforcement operations on or near public health premises, as these effectively limit or deprive migrant children or children born to migrant parents in an irregular situation of their right to health.33 Effective firewalls should be put in place in order to ensure their right to health. 57. Discrimination can often exacerbate insufficient financial and legal protection, and may force migrant children to postpone treatment until they are seriously ill. Attention should be paid to resolving the issues surrounding complicated health services that require prompt and extensive responses, in which discriminatory approaches may severely affect the health of migrant children and significantly delay their treatment and recovery period. The commitment of health professionals should be first to their patients and to upholding children’s health as a human right. 58. Restrictions on adult migrants’ right to health on the basis of their nationality or migration status could also affect their children’s right to health, life and development. Therefore, a comprehensive approach to children’s rights should include measures directed at ensuring the right to health to all migrant workers and their families, regardless of their migration status, as well as measures aimed at ensuring an intercultural approach to health policies, programmes and practices.
J. RIGHT TO EDUCATION AND PROFESSIONAL TRAINING (ARTICLES 30,
43 AND 45 OF THE INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES; ARTICLES 28, 29, 30 AND 31 OF THE CONVENTION ON THE RIGHTS OF THE CHILD)
59. All children in the context of international migration, irrespective of status, shall have full access to all levels and all aspects of education, including early childhood education and vocational training, on the basis of equality with nationals of the country where those children are living. This obligation implies that States should ensure equal access to quality and inclusive education for all migrant children, irrespective of their migration status. Migrant children should have access to alternative learning programmes where necessary and participate fully in examinations and receive certification of their studies. 60. The Committees strongly urge States to expeditiously reform regulations and practices that prevent migrant children, in particular undocumented children, from 32 See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 86. 33 See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, general comment No. 2, para. 74.
BACK
KEYWORDS INDEX
U PV EDR A TED SION registering at schools and educational institutions. States should also develop effective firewalls between educational institutions and immigration authorities and prohibit the sharing of students’ data as well as immigration enforcement operations on or near school premises, as these practices limit or deprive migrant children or children of migrant workers in an irregular situation of their right to education. To respect children’s right to education, States are also encouraged to avoid disruption during migrationrelated procedures, avoiding children having to move during the school year if possible, as well as supporting them to complete any compulsory and ongoing education courses when they reach the age of majority. While access to upper-level education is not compulsory, the principle of non-discrimination obliges States to provide available services to every child without discrimination on the basis of their migration status or other prohibited grounds. 61. States should put in place adequate measures to recognize the child’s former education by acknowledging previously obtained school certificates and/or issuing new certification based on the child’s capacities and capabilities, to avoid creating stigmatization or penalization. This is equally applicable to countries of origin or third countries in the case of return. 62. The principle of equality of treatment requires States to eliminate any discrimination against migrant children and to adopt appropriate and gender-sensitive provisions to overcome educational barriers. This means that, where necessary, targeted measures are needed, including additional language education,34 additional staff and other intercultural support, without discrimination of any kind. States are encouraged to dedicate staff to facilitating access to education for migrant children and to promoting the integration of migrant children into schools. In addition, States should take measures aimed at prohibiting and preventing any kind of educational segregation, to ensure that migrant children learn the new language as a means for effective integration. State efforts should include the provision of early childhood education as well as psychosocial support. States should also provide formal and non-formal learning opportunities, teacher training and life skills classes. 63. States should develop concrete measures to foster intercultural dialogue between migrant and host communities and to address and prevent xenophobia or any type of discrimination or related intolerance against migrant children. In addition, integrating human rights education, including on non-discrimination, as well as migration and migrants’ rights and children’s rights, within education curricula would contribute to preventing in xenophobic or any form of discriminatory attitudes that could affect migrants’ integration in the long term.
INTERNATIONAL
or bilateral cooperation and dialogue and through a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit, destination and return in promoting and protecting the human rights of children in the context of international migration, so as to ensure safe, orderly and regular migration, with full respect for human rights and avoiding approaches that might aggravate their vulnerability. In particular, cross-border case management procedures should be established in an expeditious manner in conformity with the Convention on the Rights of the Child, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. In addition, cooperation could include initiatives aimed at strengthening financial and technical assistance as well as resettlement programmes to countries which host a large number of displaced persons, including children, from other countries and are in need of assistance. All practices should be fully in line with international human rights and refugee law obligations. 65. In order to ensure that this comprehensive and balanced approach is consistent with the best interests of children, child protection/welfare agencies should have a key role in the development of any international, regional or bilateral agreements that affect the rights and treatment of children in the context of international migration. Bilateral, regional and international initiatives should be encouraged in order to facilitate family reunification, implement best interest assessment and determination, and guarantee children’s right to be heard and due process safeguards. Such initiatives should ensure access to justice in cross- border situations where children whose rights are affected in the country of transit or destination need it after they have returned to the country of origin or gone to a third country. In addition, States should ensure the participation of children and civil society organizations, including regional intergovernmental institutions, in these processes. States should also avail themselves of technical cooperation from the international community and United Nations agencies and entities, including the United Nations Children’s Fund and the International Organization for Migration, for the implementation of migration policies in respect of children in line with the present joint general comment.
DISSEMINATION
COOPERATION
AND USE OF THE JOINT GENERAL COMMENT AND REPORTING
64. The Committees reaffirm the need to address international migration through international, regional 34 See article 45 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
BI A CK N D E X
331
U PV EDR A TED SION 66. States parties should disseminate widely the present joint general comment to all stakeholders, in particular parliaments, governmental authorities, including child protection and migration authorities and personnel, and the judiciary, at all national, regional and local levels. It should be made known to all children and all relevant professionals and stakeholders, including those working for and with children (i.e., judges, lawyers, police and other law enforcement entities, teachers, guardians, social workers, staff of public or private welfare institutions and shelters, and health-care providers), the media and civil society at large. 67. The present joint general comment should be translated into relevant languages, and child-friendly/ appropriate versions and formats accessible to persons with disabilities should be made available. Conferences, seminars, workshops and other events should be held to share good practices on how best to implement it. It should also be incorporated into the formal pre- and in-service training of all concerned professionals and to technical staff in particular, as well as to child protection, migration and law enforcement authorities and personnel, and should be made available to all national and local human rights institutions and other human rights civil society organizations. 68. States parties should include in their reports under article 73 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and article 44 of the Convention on the Rights of the Child information about the measures guided by the present joint general comments that they have implemented and their outcomes.
332
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
333
number 24
U PV EDR A TED SION
INTRODUCTION 1. The present general comment replaces general comment No. 10 (2007) on children’s rights in juvenile justice. It reflects the developments that have occurred since 2007 as a result of the promulgation of international and regional standards, the Committee’s jurisprudence, new knowledge about child and adolescent development, and evidence of effective practices, including those relating to restorative justice. It also reflects concerns such as the trends relating to the minimum age of criminal responsibility and the persistent use of deprivation of liberty. The general comment covers specific issues, such as issues relating to children recruited and used by non-State armed groups, including those designated as terrorist groups, and children in customary, indigenous or other non-State justice systems.
5. In the past decade, several declarations and guidelines that promote access to justice and child-friendly justice have been adopted by international and regional bodies. These frameworks cover children in all aspects of the justice systems, including child victims and witnesses of crime, children in welfare proceedings and children before administrative tribunals. These developments, valuable though they are, fall outside of the scope of the present general comment, which is focused on children alleged as, accused of or recognized as having infringed criminal law.
2. Children differ from adults in their physical and psychological development. Such differences constitute the basis for the recognition of lesser culpability, and for a separate system with a differentiated, individualized approach. Exposure to the criminal justice system has been demonstrated to cause harm to children, limiting their chances of becoming responsible adults.
6. The objectives and scope of the present general comment are:
3. The Committee acknowledges that preservation of public safety is a legitimate aim of the justice system, including the child justice system. However, States parties should serve this aim subject to their obligations to respect and implement the principles of child justice as enshrined in the Convention on the Rights of the Child. As the Convention clearly states in article 40, every child alleged as, accused of or recognized as having infringed criminal law should always be treated in a manner consistent with the promotion of the child’s sense of dignity and worth. Evidence shows that the prevalence of crime committed by children tends to decrease after the adoption of systems in line with these principles. 4. The Committee welcomes the many efforts made to establish child justice systems in compliance with the Convention. Those States having provisions that are more conducive to the rights of children than those contained in the Convention and the present general comment are commended, and reminded that, in accordance with article 41 of the Convention, they should not take any retrogressive steps. State party reports indicate that many States parties still require significant investment to achieve full compliance with the Convention, particularly regarding prevention, early intervention, the development and implementation of diversion measures, a multidisciplinary approach, the minimum age of criminal responsibility and the reduction of deprivation of liberty. The Committee draws States’ attention to the report of the Independent Expert leading the United Nations global study on children deprived of their liberty (A/74/136), submitted pursuant to General Assembly resolution 69/157, which had been initiated by the Committee. 336
OBJECTIVES AND SCOPE a) To provide a contemporary consideration of the relevant articles and principles in the Convention on the Rights of the Child, and to guide States towards a holistic implementation of child justice systems that promote and protect children’s rights; b) To reiterate the importance of prevention and early intervention, and of protecting children’s rights at all stages of the system; c) To promote key strategies for reducing the especially harmful effects of contact with the criminal justice system, in line with increased knowledge about children’s development, in particular: i) Setting an appropriate minimum age of criminal responsibility and ensuring the appropriate treatment of children on either side of that age; ii) Scaling up the diversion of children away from formal justice processes and to effective programmes; iii) Expanding the use of non-custodial measures to ensure that detention of children is a measure of last resort; iv) Ending the use of corporal punishment, capital punishment and life sentences; v) For the few situations where deprivation of liberty is justified as a last resort, ensuring that its application is for older children only, is strictly time limited and is subject to regular review; d) To promote the strengthening of systems through improved organization, capacity-building, data collection, evaluation and research; e) To provide guidance on new developments in the field, in particular the recruitment and use of children by non-State armed groups, including those designated as terrorist groups, and children coming into contact with customary, indigenous and non-State justice systems.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
CORE ELEMENTS
OF A COMPREHENSIVE CHILD JUSTICE POLICY
A. PREVENTION OF CHILD OFFENDING, INCLUDING EARLY INTERVENTION DIRECTED AT CHILDREN BELOW THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY
TERMINOLOGY 7. The Committee encourages the use of non-stigmatizing language relating to children alleged as, accused of or recognized as having infringed criminal law. 8. Important terms used in the present general comment are listed below: - Appropriate adult: in situations where the parent or legal guardian is not available to assist the child, States parties should allow for an appropriate adult to assist the child. An appropriate adult may be a person who is nominated by the child and/or by the competent authority. - Child justice system:1 the legislation, norms and standards, procedures, mechanisms and provisions specifically applicable to, and institutions and bodies set up to deal with, children considered as offenders. - Deprivation of liberty: any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.2 - Diversion: measures for referring children away from the judicial system, at any time prior to or during the relevant proceedings. - Minimum age of criminal responsibility: the minimum age below which the law determines that children do not have the capacity to infringe the criminal law. - Pretrial detention: detention from the moment of the arrest to the stage of the disposition or sentence, including detention throughout the trial. - Restorative justice: any process in which the victim, the offender and/or any other individual or community member affected by a crime actively participates together in the resolution of matters arising from the crime, often with the help of a fair and impartial third party. Examples of restorative process include mediation, conferencing, conciliation and sentencing circles.3 1 In the English version of the present general comment, the term “child justice system” is used in place of “juvenile justice”. 2 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), art. 11 (b). 3 Basic principles on the use of restorative justice programmes in criminal matters, para. 2.
9. States parties should consult the United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice and comparative national and international research on root causes of children’s involvement in the child justice system and undertake their own research to inform the development of a prevention strategy. Research has demonstrated that intensive familyand community-based treatment programmes designed to make positive changes in aspects of the various social systems (home, school, community, peer relations) that contribute to the serious behavioural difficulties of children reduce the risk of children coming into child justice systems. Prevention and early intervention programmes should be focused on support for families, in particular those in vulnerable situations or where violence occurs. Support should be provided to children at risk, particularly children who stop attending school, are excluded or otherwise do not complete their education. Peer group support and a strong involvement of parents are recommended. States parties should also develop community-based services and programmes that respond to the specific needs, problems, concerns and interests of children, and that provide appropriate counselling and guidance to their families. 10. Articles 18 and 27 of the Convention confirm the importance of the responsibility of parents for the upbringing of their children, but at the same time the Convention requires States parties to provide the assistance to parents (or other caregivers) necessary to carry out their child-rearing responsibilities. Investment in early childhood care and education correlates with lower rates of future violence and crime. This can commence when the child is very young, for example with home visitation programmes to enhance parenting capacity. Measures of assistance should draw on the wealth of information on community and family-based prevention programmes, such as programmes to improve parent-child interaction, partnerships with schools, positive peer association and cultural and leisure activities. 11. Early intervention for children who are below the minimum age of criminal responsibility requires childfriendly and multidisciplinary responses to the first signs of behaviour that would, if the child were above the minimum age of criminal responsibility, be considered an offence. Evidence-based intervention programmes should be developed that reflect not only the multiple psychosocial causes of such behaviour, but also the protective factors that may strengthen resilience. Interventions must be preceded by a comprehensive and interdisciplinary
BI A CK N D E X
337
U PV EDR A TED SION
assessment of the child’s needs. As an absolute priority, children should be supported within their families and communities. In the exceptional cases that require an out-of-home placement, such alternative care should preferably be in a family setting, although placement in residential care may be appropriate in some instances, to provide the necessary array of professional services. It is to be used only as a measure of last resort and for the shortest appropriate period of time and should be subject to judicial review. 12. A systemic approach to prevention also includes closing pathways into the child justice system through the decriminalization of minor offences such as school absence, running away, begging or trespassing, which often are the result of poverty, homelessness or family violence. Child victims of sexual exploitation and adolescents who engage with one another in consensual sexual acts are also sometimes criminalized. These acts, also known as status offences, are not considered crimes if committed by adults. The Committee urges States parties to remove status offences from their statutes.
B. INTERVENTIONS FOR CHILDREN ABOVE THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY4 13. Under article 40 (3) (b) of the Convention, States parties are required to promote the establishment of measures for dealing with children without resorting to judicial proceedings, whenever appropriate. In practice, the measures generally fall into two categories: (a) Measures referring children away from the judicial system, any time prior to or during the relevant proceedings (diversion); (b) Measures in the context of judicial proceedings. 14. The Committee reminds States parties that, in applying measures under both categories of intervention, utmost care should be taken to ensure that the child’s human rights and legal safeguards are fully respected and protected.
INTERVENTIONS THAT AVOID RESORTING TO JUDICIAL PROCEEDINGS 15. Measures dealing with children that avoid resorting to judicial proceedings have been introduced into many systems around the world, and are generally referred to as diversion. Diversion involves the referral of matters away from the formal criminal justice system, usually to programmes or activities. In addition to avoiding stigmatization and criminal records, this approach yields good results for children, is congruent with public safety and has proved to be cost-effective.
338
4 See also section IV.E below.
16. Diversion should be the preferred manner of dealing with children in the majority of cases. States parties should continually extend the range of offences for which diversion is possible, including serious offences where appropriate. Opportunities for diversion should be available from as early as possible after contact with the system, and at various stages throughout the process. Diversion should be an integral part of the child justice system, and, in accordance with art. 40 (3) (b) of the Convention, children’s human rights and legal safeguards are to be fully respected and protected in all diversion processes and programmes 17. It is left to the discretion of States parties to decide on the exact nature and content of measures of diversion, and to take the necessary legislative and other measures for their implementation. The Committee takes note that a variety of community-based programmes have been developed, such as community service, supervision and guidance by designated officials, family conferencing and other restorative justice options, including reparation to victims. 18. The Committee emphasizes the following: a) Diversion should be used only when there is compelling evidence that the child committed the alleged offence, that he or she freely and voluntarily admits responsibility, without intimidation or pressure, and that the admission will not be used against the child in any subsequent legal proceeding; b) The child’s free and voluntary consent to diversion should be based on adequate and specific information on the nature, content and duration of the measure, and on an understanding of the consequences of a failure to cooperate or complete the measure; c) The law should indicate the cases in which diversion is possible, and the relevant decisions of the police, prosecutors and/or other agencies should be regulated and reviewable. All State officials and actors participating in the diversion process should receive the necessary training and support; d) The child is to be given the opportunity to seek legal or other appropriate assistance relating to the diversion offered by the competent authorities, and the possibility of review of the measure; e) Diversion measures should not include the deprivation of liberty; f) The completion of the diversion should result in a definite and final closure of the case. Although confidential records of diversion can be kept for administrative, review, investigative and research purposes, they should not be viewed as criminal convictions or result in criminal records.
BACK
KEYWORDS INDEX
U PV EDR A TED SION age of criminal responsibility under any circumstances, in accordance with article 41 of the Convention.
INTERVENTIONS IN THE CONTEXT OF JUDICIAL PROCEEDINGS (DISPOSITION) 19. When judicial proceedings are initiated by the competent authority, the principles of a fair and just trial are applicable (see section D below). The child justice system should provide ample opportunities to apply social and educational measures, and to strictly limit the use of deprivation of liberty, from the moment of arrest, throughout the proceedings and in sentencing. States parties should have in place a probation service or similar agency with well-trained staff to ensure the maximum and effective use of measures such as guidance and supervision orders, probation, community monitoring or day reporting centres, and the possibility of early release from detention.
23. The Committee recognizes that although the setting of a minimum age of criminal responsibility at a reasonably high level is important, an effective approach also depends on how each State deals with children above and below that age. The Committee will continue to scrutinize this in reviews of State party reports. Children below the minimum age of criminal responsibility are to be provided with assistance and services according to their needs, by the appropriate authorities, and should not be viewed as children who have committed criminal offences.
C. AGE AND CHILD JUSTICE SYSTEMS
24. If there is no proof of age and it cannot be established that the child is below or above the minimum age of criminal responsibility, the child is to be given the benefit of the doubt and is not to be held criminally responsible.
MINIMUM AGE OF CRIMINAL RESPONSIBILITY
SYSTEMS WITH EXCEPTIONS TO THE MINIMUM AGE
20. Children who are below the minimum age of criminal responsibility at the time of the commission of an offence cannot be held responsible in criminal law proceedings. Children at or above the minimum age at the time of the commission of an offence but younger than 18 years can be formally charged and subjected to child justice procedures, in full compliance with the Convention. The Committee reminds States parties that the relevant age is the age at the time of the commission of the offence.
25. The Committee is concerned about practices that permit exceptions to the use of a lower minimum age of criminal responsibility in cases where, for example, the child is accused of committing a serious offence. Such practices are usually created to respond to public pressure and are not based on a rational understanding of children’s development. The Committee strongly recommends that States parties abolish such approaches and set one standardized age below which children cannot be held responsible in criminal law, without exception.
21. Under article 40 (3) of the Convention, States parties are required to establish a minimum age of criminal responsibility, but the article does not specify the age. Over 50 States parties have raised the minimum age following ratification of the Convention, and the most common minimum age of criminal responsibility internationally is 14. Nevertheless, reports submitted by States parties indicate that some States retain an unacceptably low minimum age of criminal responsibility. 22. Documented evidence in the fields of child development and neuroscience indicates that maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 13 years due to the fact that their frontal cortex is still developing. Therefore, they are unlikely to understand the impact of their actions or to comprehend criminal proceedings. They are also affected by their entry into adolescence. As the Committee notes in its general comment No. 20 (2016) on the implementation of the rights of the child during adolescence, adolescence is a unique defining stage of human development characterized by rapid brain development, and this affects risk-taking, certain kinds of decision-making and the ability to control impulses. States parties are encouraged to take note of recent scientific findings, and to increase their minimum age accordingly, to at least 14 years of age. Moreover, the developmental and neuroscience evidence indicates that adolescent brains continue to mature even beyond the teenage years, affecting certain kinds of decision-making. Therefore, the Committee commends States parties that have a higher minimum age, for instance 15 or 16 years of age, and urges States parties not to reduce the minimum
SYSTEMS WITH TWO MINIMUM AGES 26. Several States parties apply two minimum ages of criminal responsibility (for example, 7 and 14 years), with a presumption that a child who is at or above the lower age but below the higher age lacks criminal responsibility unless sufficient maturity is demonstrated. Initially devised as a protective system, it has not proved so in practice. Although there is some support for the idea of individualized assessment of criminal responsibility, the Committee has observed that this leaves much to the discretion of the court and results in discriminatory practices. 27. States are urged to set one appropriate minimum age and to ensure that such legal reform does not result in a retrogressive position regarding the minimum age of criminal responsibility.
CHILDREN LACKING CRIMINAL RESPONSIBILITY FOR REASONS RELATED TO DEVELOPMENTAL DELAYS OR NEURODEVELOPMENTAL DISORDERS OR DISABILITIES 28. Children with developmental delays or neurodevelopmental disorders or disabilities (for example, autism spectrum disorders, fetal alcohol spectrum disorders or acquired brain injuries) should not be in the child justice system at all, even if they have reached the minimum age of criminal responsibility. If not automatically excluded, such children should be individually assessed.
BI A CK N D E X
339
U PV EDR A TED SION APPLICATION OF THE CHILD JUSTICE SYSTEM 29. The child justice system should apply to all children above the minimum age of criminal responsibility but below the age of 18 years at the time of the commission of the offence. 30. The Committee recommends that those States parties that limit the applicability of their child justice system to children under the age of 16 years (or lower), or that allow by way of exception that certain children are treated as adult offenders (for example, because of the offence category), change their laws to ensure a non-discriminatory full application of their child justice system to all persons below the age of 18 years at the time of the offence (see also general comment No. 20, para. 88). 31. Child justice systems should also extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process. 32. The Committee commends States parties that allow the application of the child justice system to persons aged 18 and older whether as a general rule or by way of exception. This approach is in keeping with the developmental and neuroscience evidence that shows that brain development continues into the early twenties.
BIRTH CERTIFICATES AND AGE DETERMINATION 33. A child who does not have a birth certificate should be provided with one promptly and free of charge by the State, whenever it is required to prove age. If there is no proof of age by birth certificate, the authority should accept all documentation that can prove age, such as notification of birth, extracts from birth registries, baptismal or equivalent documents or school reports. Documents should be considered genuine unless there is proof to the contrary. Authorities should allow for interviews with or testimony by parents regarding age, or for permitting affirmations to be filed by teachers or religious or community leaders who know the age of the child. 34. Only if these measures prove unsuccessful may there be an assessment of the child’s physical and psychological development, conducted by specialist pediatricians or other professionals skilled in evaluating different aspects of development. Such assessments should be carried out in a prompt, child- and gender-sensitive and culturally appropriate manner, including interviews of children and parents or caregivers in a language the child understands. States should refrain from using only medical methods based on, inter alia, bone and dental analysis, which is often inaccurate, due to wide margins of error, and can also be traumatic. The least invasive method of assessment should be applied. In the case of inconclusive evidence, the child or young person is to have the benefit of the doubt.
340
CONTINUATION OF CHILD JUSTICE MEASURES 35. The Committee recommends that children who turn 18 before completing a diversion programme or noncustodial or custodial measure be permitted to complete the programme, measure or sentence, and not be sent to centres for adults.
OFFENCES COMMITTED BEFORE AND AFTER 18 YEARS AND OFFENCES COMMITTED WITH ADULTS 36. In cases where a young person commits several offences, some occurring before and some after the age of 18 years, States parties should consider providing for procedural rules that allow the child justice system to be applied in respect of all the offences when there are reasonable grounds to do so. 37. In cases where a child commits an offence together with one or more adults, the rules of the child justice system applies to the child, whether they are tried jointly or separately.
D. GUARANTEES FOR A FAIR TRIAL 38. Article 40 (2) of the Convention contains an important list of rights and guarantees aimed at ensuring that every child receives fair treatment and trial (see also article 14 of the International Covenant on Civil and Political Rights). It should be noted that these are minimum standards. States parties can and should try to establish and observe higher standards. 39. The Committee emphasizes that continuous and systematic training of professionals in the child justice system is crucial to uphold those guarantees. Such professionals should be able to work in interdisciplinary teams, and should be well informed about the physical, psychological, mental and social development of children and adolescents, as well as about the special needs of the most marginalized children. 40. Safeguards against discrimination are needed from the earliest contact with the criminal justice system and throughout the trial, and discrimination against any group of children requires active redress. In particular, gendersensitive attention should be paid to girls and to children who are discriminated against on the basis of sexual orientation or gender identity. Accommodation should be made for children with disabilities, which may include physical access to court and other buildings, support for children with psychosocial disabilities, assistance with communication and the reading of documents, and procedural adjustments for testimony. 41. States parties should enact legislation and ensure practices that safeguard children’s rights from the moment of contact with the system, including at the stopping, warning or arrest stage, while in custody of police or other law enforcement agencies, during transfers to and from police stations, places of detention and courts, and during questioning, searches and the taking of evidentiary
BACK
KEYWORDS INDEX
U PV EDR A TED SION samples. Records should be kept on the location and condition of the child in all phases and processes.
PROMPT AND DIRECT INFORMATION OF THE CHARGE(S) (ART. 40 (2) (B) (II))
NO RETROACTIVE APPLICATION OF CHILD JUSTICE (ART. 40 (2) (A))
47. Every child has the right to be informed promptly and directly (or where appropriate through his or her parent or guardian) of the charges brought against him or her. Promptly means as soon as possible after the first contact of the child with the justice system. Notification of parents should not be neglected on the grounds of convenience or resources. Children who are diverted at the charge stage need to understand their legal options, and legal safeguards should be fully respected.
42. No child shall be held guilty of any criminal offence that did not constitute a criminal offence, under national or international law, at the time it was committed. States parties that expand their criminal law provisions to prevent and combat terrorism should ensure that those changes do not result in the retroactive or unintended punishment of children. No child should be punished with a heavier penalty than the one applicable at the time of the offence, but if a change of law after the offence provides for a lighter penalty, the child should benefit.
PRESUMPTION OF INNOCENCE (ART. 40 (2) (B) (I)) 43. The presumption of innocence requires that the burden of proof of the charge is on the prosecution, regardless of the nature of the offence. The child has the benefit of the doubt and is guilty only if the charges have been proved beyond reasonable doubt. Suspicious behaviour on the part of the child should not lead to assumptions of guilt, as it may be due to a lack of understanding of the process, immaturity, fear or other reasons.
RIGHT TO BE HEARD (ART. 12) 44. In paragraphs 57 to 64 of general comment No. 12 (2009) on the right of the child to be heard, the Committee explained the fundamental right of the child to be heard in the context of child justice. 45. Children have the right to be heard directly, and not only through a representative, at all stages of the process, starting from the moment of contact. The child has the right to remain silent and no adverse inference should be drawn when children elect not to make statements.
EFFECTIVE PARTICIPATION IN THE PROCEEDINGS (ART. 40 (2) (B) (IV)) 46. A child who is above the minimum age of criminal responsibility should be considered competent to participate throughout the child justice process. To effectively participate, a child needs to be supported by all practitioners to comprehend the charges and possible consequences and options in order to direct the legal representative, challenge witnesses, provide an account of events and to make appropriate decisions about evidence, testimony and the measure(s) to be imposed. Proceedings should be conducted in a language the child fully understands or an interpreter is to be provided free of charge. Proceedings should be conducted in an atmosphere of understanding to allow children to fully participate. Developments in child-friendly justice provide an impetus towards child-friendly language at all stages, child-friendly layouts of interviewing spaces and courts, support by appropriate adults, removal of intimidating legal attire and adaptation of proceedings, including accommodation for children with disabilities.
48. Authorities should ensure that the child understands the charges, options and processes. Providing the child with an official document is insufficient and an oral explanation is necessary. Although children should be assisted in understanding any document by a parent or appropriate adult, authorities should not leave the explanation of the charges to such persons.
LEGAL OR OTHER APPROPRIATE ASSISTANCE (ART. 40 (2) (B) (II)) 49. States should ensure that the child is guaranteed legal or other appropriate assistance from the outset of the proceedings, in the preparation and presentation of the defence, and until all appeals and/or reviews are exhausted. The Committee requests States parties to withdraw any reservation made in respect of article 40 (2) (b) (ii). 50. The Committee remains concerned that many children face criminal charges before judicial, administrative or other public authorities, and are deprived of liberty, without having the benefit of legal representation. The Committee notes that in article 14 (3) (d) of the International Covenant on Civil and Political Rights, the right to legal representation is a minimum guarantee in the criminal justice system for all persons, and this should equally apply to children. While the article allows the person to defend himself or herself in person, in any case where the interests of justice so require the person is to be assigned legal assistance. 51. In the light of the above, the Committee is concerned that children are provided less protection than international law guarantees for adults. The Committee recommends that States provide effective legal representation, free of charge, for all children who are facing criminal charges before judicial, administrative or other public authorities Child justice systems should not permit children to waive legal representation unless the decision to waive is made voluntarily and under impartial judicial supervision. 52. If children are diverted to programmes or are in a system that does not result in convictions, criminal records or deprivation of liberty, “other appropriate assistance” by well-trained officers may be an acceptable form of assistance, although States that can provide legal representation for children during all processes should do so, in accordance with article 41. Where other appropriate assistance is permissible, the person providing the assistance is required to have sufficient knowledge of the legal aspects of the child justice process and receive appropriate training.
BI A CK N D E X
341
U PV EDR A TED SION 53. As required under article 14 (3) (b) of the International Covenant on Civil and Political Rights, there is to be adequate time and facilities for the preparation of the defence. Under the Convention on the Rights of the Child, the confidentiality of communications between the child and his or her legal representative or other assistant is to be guaranteed (art. 40 (2) (b) (vii)), and the child’s right of protection against interference with his or her privacy and correspondence is to be respected (art. 16).
DECISIONS WITHOUT DELAY AND WITH THE INVOLVEMENT OF PARENTS OR GUARDIANS (ART. 40 (2) (B) (III)) 54. The Committee reiterates that the time between the commission of the offence and the conclusion of proceedings should be as short as possible. The longer this period, the more likely it is that the response loses its desired outcome. 55. The Committee recommends that States parties set and implement time limits for the period between the commission of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to institute charges, and the final decision by the court or other judicial body. These time limits should be much shorter than those set for adults, but should still allow legal safeguards to be fully respected. Similar speedy time limits should apply to diversion measures. 56. Parents or legal guardians should be present throughout the proceedings. However, the judge or competent authority may decide to limit, restrict or exclude their presence in the proceedings, at the request of the child or of his or her legal or other appropriate assistant or because it is not in the child’s best interests. 57. The Committee recommends that States parties explicitly legislate for the maximum possible involvement of parents or legal guardians in the proceedings because they can provide general psychological and emotional assistance to the child and contribute to effective outcomes. The Committee also recognizes that many children are informally living with relatives who are neither parents nor legal guardians, and that laws should be adapted to allow genuine caregivers to assist children in proceedings, if parents are unavailable.
FREEDOM FROM COMPULSORY SELFINCRIMINATION (ART. 40 (2) (B) (IV)) 58. States parties must ensure that a child is not compelled to give testimony or to confess or acknowledge guilt. The commission of acts of torture or cruel, inhuman or degrading treatment in order to extract an admission or confession constitutes a grave violation of the child’s rights (Convention on the Rights of the Child, art. 37 (a)). Any such admission or confession is inadmissible as evidence (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 15). 59. Coercion leading a child to a confession or selfincriminatory testimony is impermissible. The term 342
“compelled” should be interpreted broadly and not be limited to physical force. The risk of false confession is increased by the child’s age and development, lack of understanding, and fear of unknown consequences, including a suggested possibility of imprisonment, as well as by the length and circumstances of the questioning. 60. The child must have access to legal or other appropriate assistance, and should be supported by a parent, legal guardian or other appropriate adult during questioning. The court or other judicial body, when considering the voluntariness and reliability of an admission or confession by a child, should take all factors into account, including the child’s age and maturity, the length of questioning or custody and the presence of legal or other independent assistance and of the parent(s), guardian or appropriate adult. Police officers and other investigating authorities should be well trained to avoid questioning techniques and practices that result in coerced or unreliable confessions or testimonies, and audiovisual techniques should be used where possible.
PRESENCE AND EXAMINATION OF WITNESSES (ART. 40 (2) (B) (IV)) 61. Children have the right to examine witnesses who testify against them and to involve witnesses to support their defence, and child justice processes should favour the child’s participation, under conditions of equality, with legal assistance.
RIGHT OF REVIEW OR APPEAL (ART. 40 (2) (B) (V)) 62. The child has the right to have any finding of guilt or the measures imposed reviewed by a higher competent, independent and impartial authority or judicial body. This right of review is not limited to the most serious offences. States parties should consider introducing automatic measures of review, particularly in cases that result in criminal records or deprivation of liberty. Furthermore, access to justice requires a broader interpretation, allowing reviews or appeals on any procedural or substantive misdirection, and ensuring that effective remedies are available.5 63. The Committee recommends that States parties withdraw any reservation made in respect of article 40 (2) (b) (v).
FREE ASSISTANCE OF AN INTERPRETER (ART. 40 (2) (B) (VI)) 64. A child who cannot understand or speak the language used in the child justice system has the right to the free assistance of an interpreter at all stages of the process. Such interpreters should be trained to work with children. 65. States parties should provide adequate and effective assistance by well-trained professionals to children who experience communication barriers. 5 Human Rights Council resolution 25/6.
BACK
KEYWORDS INDEX
U PV EDR A TED SION FULL RESPECT OF PRIVACY (ARTS. 16 AND 40 (2) (B) (VII)) 66. The right of a child to have his or her privacy fully respected during all stages of the proceedings, set out in article 40 (2) (b) (vii), should be read with articles 16 and 40 (1). 67. States parties should respect the rule that child justice hearings are to be conducted behind closed doors. Exceptions should be very limited and clearly stated in the law. If the verdict and/or sentence is pronounced in public at a court session, the identity of the child should not be revealed. Furthermore, the right to privacy also means that the court files and records of children s should be kept strictly confidential and closed to third parties except for those directly involved in the investigation and adjudication of, and the ruling on, the case. 68. Case-law reports relating to children should be anonymous, and such reports placed online should adhere to this rule. 69. The Committee recommends that States refrain from listing the details of any child, or person who was a child at the time of the commission of the offence, in any public register of offenders. The inclusion of such details in other registers that are not public but impede access to opportunities for reintegration should be avoided. 70. In the Committee’s view, there should be lifelong protection from publication regarding crimes committed by children. The rationale for the non-publication rule, and for its continuation after the child reaches the age of 18, is that publication causes ongoing stigmatization, which is likely to have a negative impact on access to education, work, housing or safety. This impedes the child’s reintegration and assumption of a constructive role in society. States parties should thus ensure that the general rule is lifelong privacy protection pertaining to all types of media, including social media. 71. Furthermore, the Committee recommends that States parties introduce rules permitting the removal of children’s criminal records when they reach the age of 18, automatically or, in exceptional cases, following independent review.
E. MEASURES6 DIVERSION THROUGHOUT THE PROCEEDINGS 72. The decision to bring a child into the justice system does not mean the child must go through a formal court process. In line with the observations made above in section IV.B, the Committee emphasizes that the competent authorities – in most States the public prosecutor – should continuously explore the possibilities of avoiding a court process or conviction, through diversion and other measures. In other words, diversion options should be offered from the earliest point of contact, before a trial commences, and be available throughout the proceedings. In the process of offering diversion, the child’s human rights and legal 6 See also section IV.B above.
safeguards should be fully respected, bearing in mind that the nature and duration of diversion measures may be demanding, and that legal or other appropriate assistance is therefore necessary. Diversion should be presented to the child as a way to suspend the formal court process, which will be terminated if the diversion programme is carried out in a satisfactory manner.
DISPOSITIONS BY THE CHILD JUSTICE COURT 73. After proceedings in full compliance with article 40 of Convention are conducted (see section IV.D above), a decision on dispositions is made. The laws should contain a wide variety of non-custodial measures and should expressly prioritize the use of such measures to ensure that deprivation of liberty is used only as a measure of last resort and for the shortest appropriate period of time. 74. A wide range of experience with the use and implementation of non-custodial measures, including restorative justice measures, exists. States parties should benefit from this experience, and develop and implement such measures by adjusting them to their own culture and tradition. Measures amounting to forced labour or to torture or inhuman and degrading treatment are to be explicitly prohibited and penalized. 75. The Committee reiterates that corporal punishment as a sanction is a violation of article 37 (a) of the Convention, which prohibits all forms of cruel, inhuman and degrading treatment or punishment (see also the Committee’s general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment). 76. The Committee emphasizes that the reaction to an offence should always be proportionate not only to the circumstances and the gravity of the offence, but also to the personal circumstances (age, lesser culpability, circumstances and needs, including, if appropriate, the mental health needs of the child), as well as to the various and particularly longterm needs of the society. A strictly punitive approach is not in accordance with the principles of child justice spelled out in article 40 (1) of the Convention. Where serious offences are committed by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need for public safety and sanctions. Weight should be given to the child’s best interests as a primary consideration as well as to the need to promote the child’s reintegration into society. 77. Recognizing the harm caused to children and adolescents by deprivation of liberty, and its negative effects on their prospects for successful reintegration, the Committee recommends that States parties set a maximum penalty for children accused of crimes that reflects the principle of the “shortest appropriate period of time” (Convention on the Rights of the Child, art. 37 (b)). 78. Mandatory minimum sentences are incompatible with the child justice principle of proportionality and with the requirement that detention is to be a measure of last resort and for the shortest appropriate period of time. Courts
BI A CK N D E X
343
U PV EDR A TED SION sentencing children should start with a clean slate; even discretionary minimum sentence regimes impede proper application of international standards.
PROHIBITION OF THE DEATH PENALTY 79. Article 37 (a) of the Convention reflects the customary international law prohibition of the imposition of the death penalty for a crime committed by a person who is under 18 years of age. A few States parties assume that the rule prohibits only the execution of persons who are below the age of 18 years at the time of execution. Other States defer the execution until the age of 18. The Committee reiterates that the explicit and decisive criterion is the age at the time of the commission of the offence. If there is no reliable and conclusive proof that the person was below the age of 18 at the time the crime was committed, he or she should have the benefit of the doubt and the death penalty cannot be imposed. 80. The Committee calls upon the few States parties that have not yet abolished the imposition of the death penalty for all offences committed by persons below the age of 18 years to do so urgently and without exceptions. Any death penalty imposed on a person who was below the age of 18 at the time of the commission of the offence should be commuted to a sanction that is in full conformity with Convention.
NO LIFE IMPRISONMENT WITHOUT PAROLE 81. No child who was below the age of 18 at the time he or she committed an offence should be sentenced to life imprisonment without the possibility of release or parole. The period to be served before consideration of parole should be substantially shorter than that for adults and should be realistic, and the possibility of parole should be regularly reconsidered. The Committee reminds States parties that sentence children to life imprisonment with the possibility of release or parole that in applying this sanction they should strive for the realization of the aims of article 40 (1) of the Convention. This means, inter alia, that a child sentenced to life imprisonment should receive education, treatment and care aiming at his or her release, reintegration and ability to assume a constructive role in society. This also requires a regular review of the child’s development and progress in order to decide on his or her possible release. Life imprisonment makes it very difficult, if not impossible, to achieve the aims of reintegration. The Committee notes the 2015 report in which the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment finds that life imprisonment and lengthy sentences, such as consecutive sentencing, are grossly disproportionate and therefore cruel, inhuman or degrading when imposed on a child (A/HRC/28/68, para. 74). The Committee strongly recommends that States parties abolish all forms of life imprisonment, including indeterminate sentences, for all offences committed by persons who were below the age of 18 at the time of commission of the offence.
344
F. DEPRIVATION OF LIBERTY, INCLUDING PRETRIAL DETENTION AND POST-TRIAL INCARCERATION 82. Article 37 of the Convention contains important principles for the use of deprivation of liberty, the procedural rights of every child deprived of liberty and provisions concerning the treatment of and conditions for children deprived of their liberty. The Committee draws the attention of States parties to the 2018 report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, in which the Special Rapporteur noted that the scale and magnitude of children’s suffering in detention and confinement called for a global commitment to the abolition of child prisons and large care institutions, alongside scaled-up investment in community-based services (A/HRC/38/36, para. 53). 83. States parties should immediately embark on a process to reduce reliance on detention to a minimum. 84. Nothing in the present general comment should be construed as promoting or supporting the use of deprivation of liberty, but rather as providing correct procedures and conditions in the minority of cases where deprivation of liberty is deemed necessary.
LEADING PRINCIPLES 85. The leading principles for the use of deprivation of liberty are: (a) the arrest, detention or imprisonment of a child is to be used only in conformity with the law, only as a measure of last resort and for the shortest appropriate period of time; and (b) no child is to be deprived of his or her liberty unlawfully or arbitrarily. Arrest is often the starting point of pretrial detention, and States should ensure that the law places clear obligations on law enforcement officers to apply article 37 in the context of arrest. States should further ensure that children are not held in transportation or in police cells, except as a measure of last resort and for the shortest period of time, and that they are not held with adults, except where that is in their best interests. Mechanisms for swift release to parents or appropriate adults should be prioritized. 86. The Committee notes with concern that, in many countries, children languish in pretrial detention for months or even years, which constitutes a grave violation of article 37 (b) of the Convention. Pretrial detention should not be used except in the most serious cases, and even then only after community placement has been carefully considered. Diversion at the pretrial stage reduces the use of detention, but even where the child is to be tried in the child justice system, non-custodial measures should be carefully targeted to restrict the use of pretrial detention. 87. The law should clearly state the criteria for the use of pretrial detention, which should be primarily for ensuring appearance at the court proceedings and if the child poses an immediate danger to others. If the child is considered a danger (to himself or herself or others) child protection measures should be applied. Pretrial detention should be
BACK
KEYWORDS INDEX
U PV EDR A TED SION subject to regular review and its duration limited by law. All actors in the child justice system should prioritize cases of children in pretrial detention. 88. In application of the principle that deprivation of liberty should be imposed for the shortest appropriate period of time, States parties should provide regular opportunities to permit early release from custody, including police custody, into the care of parents or other appropriate adults. There should be discretion to release with or without conditions, such as reporting to an authorized person or place. The payment of monetary bail should not be a requirement, as most children cannot pay and because it discriminates against poor and marginalized families. Furthermore, where bail is set it means that there is a recognition in principle by the court that the child should be released, and other mechanisms can be used to secure attendance.
PROCEDURAL RIGHTS (ART. 37 (D)) 89. Every child deprived of his or her liberty has the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. The Committee recommends that no child be deprived of liberty, unless there are genuine public safety or public health concerns, and encourages State parties to fix an age limit below which children may not legally be deprived of their liberty, such as 16 years of age. 90. Every child arrested and deprived of his or her liberty should be brought before a competent authority within 24 hours to examine the legality of the deprivation of liberty or its continuation. The Committee also recommends that States parties ensure that pretrial detention is reviewed regularly with a view to ending it. In cases where conditional release of the child at or before the first appearance (within 24 hours) is not possible, the child should be formally charged with the alleged offences and be brought before a court or other competent, independent and impartial authority or judicial body for the case to be dealt with as soon as possible but not later than 30 days after pretrial detention takes effect. The Committee, conscious of the practice of adjourning court hearings many times and/or for long periods, urges States parties to adopt maximum limits for the number and length of postponements and introduce legal or administrative provisions to ensure that the court or other competent body makes a final decision on the charges not later than six months from the initial date of detention, failing which the child should be released. 91. The right to challenge the legality of the deprivation of liberty includes not only the right to appeal court decisions, but also the right of access to a court for review of an administrative decision (taken by, for example, the police, the prosecutor and other competent authorities). States parties should set short time limits for the finalization of appeals and reviews to ensure prompt decisions, as required by the Convention.
TREATMENT AND CONDITIONS (ART. 37 (C)) 92. Every child deprived of liberty is to be separated from adults, including in police cells. A child deprived of liberty is not to be placed in a centre or prison for adults, as there is abundant evidence that this compromises their health and basic safety and their future ability to remain free of crime and to reintegrate. The permitted exception to the separation of children from adults stated in article 37 (c) of the Convention – “unless it is considered in the child’s best interests not to do so” – should be interpreted narrowly and the convenience of the States parties should not override best interests. States parties should establish separate facilities for children deprived of their liberty that are staffed by appropriately trained personnel and that operate according to child-friendly policies and practices. 93. The above rule does not mean that a child placed in a facility for children should be moved to a facility for adults immediately after he or she reaches the age of 18. The continuation of his or her stay in the facility for children should be possible if that is in his or her best interests and not contrary to the best interests of the children in the facility. 94. Every child deprived of liberty has the right to maintain contact with his or her family through correspondence and visits. To facilitate visits, the child should be placed in a facility as close as possible to his or her family’s place of residence. Exceptional circumstances that may limit this contact should be clearly described in law and not be left to the discretion of the authorities. 95. The Committee emphasizes that, inter alia, the following principles and rules need to be observed in all cases of deprivation of liberty: a) Incommunicado detention is not permitted for persons below the age of 18; b) Children should be provided with a physical environment and accommodation conducive to the reintegrative aims of residential placement. Due regard should be given to their needs for privacy, for sensory stimuli and for opportunities to associate with their peers and to participate in sports, physical exercise, arts and leisure-time activities; c) Every child has the right to education suited to his or her needs and abilities, including with regard to undertaking exams, and designed to prepare him or her for return to society; in addition, every child should, when appropriate, receive vocational training in occupations likely to prepare him or her for future employment; d) Every child has the right to be examined by a physician or a health practitioner upon admission to the detention or correctional facility and is to receive adequate physical and mental health care throughout his or her stay in the facility, which should be provided, where possible, by the health facilities and services of the community; e) The staff of the facility should promote and facilitate frequent contact by the child with the wider community, including communications with his or her family, friends and other persons, including representatives of reputable
BI A CK N D E X
345
U PV EDR A TED SION outside organizations, and the opportunity to visit his or her home and family. There is to be no restriction on the child’s ability to communicate confidentially and at any time with his or her lawyer or other assistant;
G. SPECIFIC ISSUES
f) Restraint or force can be used only when the child poses an imminent threat of injury to himself or herself or others, and only when all other means of control have been exhausted. Restraint should not be used to secure compliance and should never involve deliberate infliction of pain. It is never to be used as a means of punishment. The use of restraint or force, including physical, mechanical and medical or pharmacological restraints, should be under close, direct and continuous control of a medical and/ or psychological professional. Staff of the facility should receive training on the applicable standards and members of the staff who use restraint or force in violation of the rules and standards should be punished appropriately. States should record, monitor and evaluate all incidents of restraint or use of force and ensure that it is reduced to a minimum;
96. There is an emerging view that trials of civilians by military tribunals and State security courts contravene the non-derogable right to a fair trial by a competent, independent and impartial court. This is an even more concerning breach of rights for children, who should always be dealt with in specialized child justice systems. The Committee has raised concerns about this in several concluding observations.
g) Any disciplinary measure is to be consistent with upholding the inherent dignity of the child and the fundamental objectives of institutional care. Disciplinary measures in violation of article 37 of the Convention must be strictly forbidden, including corporal punishment, placement in a dark cell, solitary confinement or any other punishment that may compromise the physical or mental health or well-being of the child concerned, and disciplinary measures should not deprive children of their basic rights, such as visits by legal representative, family contact, food, water, clothing, bedding, education, exercise or meaningful daily contact with others; h) Solitary confinement should not be used for a child. Any separation of the child from others should be for the shortest possible time and used only as a measure of last resort for the protection of the child or others. Where it is deemed necessary to hold a child separately, this should be done in the presence or under the close supervision of a suitably trained staff member, and the reasons and duration should be recorded; i) Every child should have the right to make requests or complaints, without censorship as to the substance, to the central administration, the judicial authority or any other proper independent authority, and to be informed of the response without delay. Children need to know their rights and to know about and have easy access to request and complaints mechanisms; j) Independent and qualified inspectors should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative; they should place special emphasis on holding conversations with children in the facilities, in a confidential setting; k) States parties should ensure that there are no incentives to deprive children of their liberty and no opportunities for corruption regarding placement, or regarding the provision of goods and services or contact with family.
346
MILITARY COURTS AND STATE SECURITY COURTS
CHILDREN RECRUITED AND USED BY NON-STATE ARMED GROUPS, INCLUDING THOSE DESIGNATED AS TERRORIST GROUPS, AND CHILDREN CHARGED IN COUNTER-TERRORISM CONTEXTS 97. The United Nations has verified numerous cases of recruitment and exploitation of children by non-State armed groups, including those designated as terrorist groups, not only in conflict areas but also in non-conflict areas, including children’s countries of origin and countries of transit or return. 98. When under the control of such groups, children may become victims of multiple forms of violations, such as conscription; military training; being used in hostilities and/or terrorist acts, including suicide attacks; being forced to carry out executions; being used as human shields; abduction; sale; trafficking; sexual exploitation; child marriage; being used for the transport or sale of drugs; or being exploited to carry out dangerous tasks, such as spying, conducting surveillance, guarding checkpoints, conducting patrols or transporting military equipment. It has been reported that non-State armed groups and those designated as terrorist groups also force children to commit acts of violence against their own families or within their own communities to demonstrate loyalty and to discourage future defection. 99. The authorities of States parties face a number of challenges when dealing with these children. Some States parties have adopted a punitive approach with no or limited consideration of children’s rights, resulting in lasting consequences for the development of the child and having a negative impact on the opportunities for social reintegration, which in turn may have serious consequences for the broader society. Often, these children are arrested, detained, prosecuted and put on trial for their actions in conflict areas and, to a lesser extent, also in their countries of origin or return. 100. The Committee draws the attention of States parties to Security Council resolution 2427 (2018). In the resolution, the Council stressed the need to establish standard operating procedures for the rapid handover of children associated or allegedly associated with all nonState armed groups, including those who committed acts of terrorism, to relevant civilian child protection actors. The Council emphasized that children who had been recruited in violation of applicable international law by armed forces and armed groups and were accused of having committed crimes during armed conflicts should be treated primarily
BACK
KEYWORDS INDEX
U PV EDR A TED SION as victims of violations of international law. The Council also urged Member States to consider non-judicial measures as alternatives to prosecution and detention that were focused on reintegration, and called on them to apply due process for all children detained for association with armed forces and armed groups. 101. States parties should ensure that all children charged with offences, regardless of the gravity or the context, are dealt with in terms of articles 37 and 40 of the Convention, and should refrain from charging and prosecuting them for expressions of opinion or for mere association with a non-State armed group, including those designated as terrorist groups. In line with paragraph 88 of its general comment No. 20, the Committee further recommends that States parties adopt preventive interventions to tackle social factors and root causes, as well as social reintegration measures, including when implementing Security Council resolutions related to counter-terrorism, such as resolutions 1373 (2001), 2178 (2014), 2396 (2017) and 2427 (2018), and General Assembly resolution 72/284, in particular the recommendations contained in paragraph 18.
CUSTOMARY, INDIGENOUS AND NON-STATE FORMS OF JUSTICE 102. Many children come into contact with plural justice systems that operate parallel to or on the margins of the formal justice system. These may include customary, tribal, indigenous or other justice systems. They may be more accessible than the formal mechanisms and have the advantage of quickly and relatively inexpensively proposing responses tailored to cultural specificities. Such systems can serve as an alternative to official proceedings against children, and are likely to contribute favourably to the change of cultural attitudes concerning children and justice. 103. There is an emerging consensus that reforms of justice sector programmes should be attentive to such systems. Considering the potential tension between State and non-State justice, in addition to concerns about procedural rights and risks of discrimination or marginalization, reforms should proceed in stages, with a methodology that involves a full understanding of the comparative systems concerned and that is acceptable to all stakeholders. Customary justice processes and outcomes should be aligned with constitutional law and with legal and procedural guarantees. It is important that unfair discrimination does not occur, if children committing similar crimes are being dealt with differently in parallel systems or forums.
Interventions, strategies and reforms should be designed for specific contexts and the process should be driven by national actors.
ORGANIZATION OF THE CHILD JUSTICE SYSTEM
105. In order to ensure the full implementation of the principles and rights elaborated in the previous paragraphs, it is necessary to establish an effective organization for the administration of child justice. 106. A comprehensive child justice system requires the establishment of specialized units within the police, the judiciary, the court system and the prosecutor’s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to the child. 107. The Committee recommends that States parties establish child justice courts either as separate units or as part of existing courts. Where that is not feasible for practical reasons, States parties should ensure the appointment of specialized judges for dealing with cases concerning child justice. 108. Specialized services such as probation, counselling or supervision should be established together with specialized facilities, for example day treatment centres and, where necessary, small-scale facilities for residential care and treatment of children referred by the child justice system. Effective inter-agency coordination of the activities of all these specialized units, services and facilities should be continuously promoted. 109. In addition, individual assessments of children and a multidisciplinary approach are encouraged. Particular attention should be paid to specialized community-based services for children who are below the age of criminal responsibility, but who are assessed to be in need of support. 110. Non-governmental organizations can and do play an important role in child justice. The Committee therefore recommends that States parties seek the active involvement of such organizations in the development and implementation of their comprehensive child justice policy and, where appropriate, provide them with the necessary resources for this involvement.
104. The principles of the Convention should be infused into all justice mechanisms dealing with children, and States parties should ensure that the Convention is known and implemented. Restorative justice responses are often achievable through customary, indigenous or other nonState justice systems, and may provide opportunities for learning for the formal child justice system. Furthermore, recognition of such justice systems can contribute to increased respect for the traditions of indigenous societies, which could have benefits for indigenous children.
BI A CK N D E X
347
U PV EDR A TED SION
AWARENESS-RAISING
DATA COLLECTION,
111. Children who commit offences are often subjected to negative publicity in the media, which contributes to a discriminatory and negative stereotyping of those children. This negative presentation or criminalization of children is often based on a misrepresentation and/or misunderstanding of the causes of crime, and regularly results in calls for tougher approaches (zero-tolerance and “three strikes” approaches, mandatory sentences, trial in adult courts and other primarily punitive measures). States parties should seek the active and positive involvement of Members of Parliament, non-governmental organizations and the media to promote and support education and other campaigns to ensure that all aspects of the Convention are upheld for children who are in the child justice system. It is crucial for children, in particular those who have experience with the child justice system, to be involved in these awareness-raising efforts.
113. The Committee urges States parties to systematically collect disaggregated data, including on the number and nature of offences committed by children, the use and the average duration of pretrial detention, the number of children dealt with by resorting to measures other than judicial proceedings (diversion), the number of convicted children, the nature of the sanctions imposed on them and the number of children deprived of their liberty.
EVALUATION AND RESEARCH
AND TRAINING
112. It is essential for the quality of the administration of child justice that all the professionals involved receive appropriate multidisciplinary training on the content and meaning of the Convention. The training should be systematic and continuous and should not be limited to information on the relevant national and international legal provisions. It should include established and emerging information from a variety of fields on, inter alia, the social and other causes of crime, the social and psychological development of children, including current neuroscience findings, disparities that may amount to discrimination against certain marginalized groups such as children belonging to minorities or indigenous peoples, the culture and the trends in the world of young people, the dynamics of group activities and the available diversion measures and non-custodial sentences, in particular measures that avoid resorting to judicial proceedings. Consideration should also be given to the possible use of new technologies such as video “court appearances”, while noting the risks of others, such as DNA profiling. There should be a constant reappraisal of what works.
348
114. The Committee recommends that States parties ensure regular evaluations of their child justice systems, in particular of the effectiveness of the measures taken, and in relation to matters such as discrimination, reintegration and patterns of offending, preferably carried out by independent academic institutions. 115. It is important that children are involved in this evaluation and research, in particular those who are or who have previously had contact with the system, and that the evaluation and research are undertaken in line with existing international guidelines on the involvement of children in research.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
BI A CK N D E X
349
U PV EDR A TED SION
350
BACK
KEYWORDS INDEX
U PV EDR A TED SION
Number 25
BI A CK N D E X
351
U PV EDR A TED SION children to realize the full range of their civil, political, cultural, economic and social rights. However, if digital inclusion is not achieved, existing inequalities are likely to increase, and new ones may arise. 5. The present general comment draws on the Committee’s experience in reviewing States parties’ reports, its day of general discussion on digital media and children’s rights, the jurisprudence of the human rights treaty bodies, the recommendations of the Human Rights Council and the special procedures of the Council, two rounds of consultations with States, experts and other stakeholders on the concept note and advanced draft and an international consultation with 709 children living in a wide variety of circumstances in 28 countries in several regions.
INTRODUCTION 1. The children consulted for the present general comment reported that digital technologies were vital to their current lives and to their future: “By the means of digital technology, we can get information from all around the world”; “[Digital technology] introduced me to major aspects of how I identify myself”; “When you are sad, the Internet can help you [to] see something that brings you joy”.1 2. The digital environment is constantly evolving and expanding, encompassing information and communications technologies, including digital networks, content, services and applications, connected devices and environments, virtual and augmented reality, artificial intelligence, robotics, automated systems, algorithms and data analytics, biometrics and implant technology.2 3. The digital environment is becoming increasingly important across most aspects of children’s lives, including during times of crisis, as societal functions, including education, government services and commerce, progressively come to rely upon digital technologies. It affords new opportunities for the realization of children’s rights, but also poses the risks of their violation or abuse. During consultations, children expressed the view that the digital environment should support, promote and protect their safe and equitable engagement: “We would like the government, technology companies and teachers to help us [to] manage untrustworthy information online.”; “I would like to obtain clarity about what really happens with my data … Why collect it? How is it being collected?”; “I am … worried about my data being shared”.3 4. The rights of every child must be respected, protected and fulfilled in the digital environment. Innovations in digital technologies affect children’s lives and their rights in ways that are wide-ranging and interdependent, even where children do not themselves access the Internet. Meaningful access to digital technologies can support 1 “Our rights in a digital world”, summary report on the consultation of children for the present general comment, pp. 14 and 22. Available from https://5rightsfoundation.com/uploads/Our%20Rights%20in%20a%20 Digital%20World.pdf. All references to children’s views refer to that report. A terminology glossary is available on the Committee’s webpage: 2 A terminology glossary is available on the Committee’s webpage: https:// tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno =INT%2fCRC%2fINF%2f9314&Lang=en. 3 A terminology glossary is available on the Committee’s webpage: https:// tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno =INT%2fCRC%2fINF%2f9314&Lang=en. 352
6. The present general comment should be read in conjunction with other relevant general comments of the Committee and its guidelines regarding the implementation of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography.
OBJECTIVE 7. In the present general comment, the Committee explains how States parties should implement the Convention in relation to the digital environment and provides guidance on relevant legislative, policy and other measures to ensure full compliance with their obligations under the Convention and the Optional Protocols thereto in the light of the opportunities, risks and challenges in promoting, respecting, protecting and fulfilling all children’s rights in the digital environment.
GENERAL PRINCIPLES 8. The following four principles provide a lens through which the implementation of all other rights under the Convention should be viewed. They should serve as a guide for determining the measures needed to guarantee the realization of children’s rights in relation to the digital environment.
A. NON-DISCRIMINATION 9. The right to non-discrimination requires that States parties ensure that all children have equal and effective access to the digital environment in ways that are meaningful for them.4 States parties should take all measures necessary to overcome digital exclusion. That includes providing free and safe access for children in dedicated public locations and investing in policies and programmes that support all 4 General comment No. 9 (2006), paras. 37–38.
BACK
KEYWORDS INDEX
U PV EDR A TED SION children’s affordable access to, and knowledgeable use of, digital technologies in educational settings, communities and homes. 10. Children may be discriminated against by their being excluded from using digital technologies and services or by receiving hateful communications or unfair treatment through use of those technologies. Other forms of discrimination can arise when automated processes that result in information filtering, profiling or decision-making are based on biased, partial or unfairly obtained data concerning a child. 11. The Committee calls upon States parties to take proactive measures to prevent discrimination on the basis of sex, disability, socioeconomic background, ethnic or national origin, language or any other grounds, and discrimination against minority and indigenous children, asylum-seeking, refugee and migrant children, lesbian, gay, bisexual, transgender and intersex children, children who are victims and survivors of trafficking or sexual exploitation, children in alternative care, children deprived of liberty and children in other vulnerable situations. Specific measures will be required to close the gender-related digital divide for girls and to ensure that particular attention is given to access, digital literacy, privacy and online safety.
B. BEST INTERESTS OF THE CHILD 12. The best interests of the child is a dynamic concept that requires an assessment appropriate to the specific context.5 The digital environment was not originally designed for children, yet it plays a significant role in children’s lives. States parties should ensure that, in all actions regarding the provision, regulation, design, management and use of the digital environment, the best interests of every child is a primary consideration. 13. States parties should involve the national and local bodies that oversee the fulfilment of the rights of children in such actions. In considering the best interests of the child, they should have regard for all children’s rights, including their rights to seek, receive and impart information, to be protected from harm and to have their views given due weight, and ensure transparency in the assessment of the best interests of the child and the criteria that have been applied.
C. RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT 14. Opportunities provided by the digital environment play an increasingly crucial role in children’s development and may be vital for children’s life and survival, especially in situations of crisis. States parties should take all appropriate measures to protect children from risks to their right to life, survival and development. Risks relating to content, contact, conduct and contract encompass, among other things, violent and sexual content, cyberaggression and harassment, gambling, exploitation and abuse, including sexual exploitation and abuse, and the promotion of or incitement to suicide or life-threatening activities, 5 General comment No. 14 (2013), para. 1.
including by criminals or armed groups designated as terrorist or violent extremist. States parties should identify and address the emerging risks that children face in diverse contexts, including by listening to their views on the nature of the particular risks that they face. 15. The use of digital devices should not be harmful, nor should it be a substitute for in-person interactions among children or between children and parents or caregivers. States parties should pay specific attention to the effects of technology in the earliest years of life, when brain plasticity is maximal and the social environment, in particular relationships with parents and caregivers, is crucial to shaping children’s cognitive, emotional and social development. In the early years, precautions may be required, depending on the design, purpose and uses of technologies. Training and advice on the appropriate use of digital devices should be given to parents, caregivers, educators and other relevant actors, taking into account the research on the effects of digital technologies on children’s development, especially during the critical neurological growth spurts of early childhood and adolescence.6
D. RESPECT FOR THE VIEWS OF THE CHILD 16. Children reported that the digital environment afforded them crucial opportunities for their voices to be heard in matters that affected them.7 The use of digital technologies can help to realize children’s participation at the local, national and international levels.8 States parties should promote awareness of, and access to, digital means for children to express their views and offer training and support for children to participate on an equal basis with adults, anonymously where needed, so that they can be effective advocates for their rights, individually and as a group. 17. When developing legislation, policies, programmes, services and training on children’s rights in relation to the digital environment, States parties should involve all children, listen to their needs and give due weight to their views. They should ensure that digital service providers actively engage with children, applying appropriate safeguards, and give their views due consideration when developing products and services. 18. States parties are encouraged to utilize the digital environment to consult with children on relevant legislative, administrative and other measures and to ensure that their views are considered seriously and that children’s participation does not result in undue monitoring or data collection that violates their right to privacy, freedom of thought and opinion. They should ensure that consultative processes are inclusive of children who lack access to technology or the skills to use it.
6 General comment No. 24 (2019), para. 22; and general comment No. 20 (2016), paras. 9–11. 7 “Our rights in a digital world”, p. 17. 8 General comment No. 14 (2013), paras. 89–91.
BI A CK N D E X
353
U PV EDR A TED SION
GENERAL MEASURES OF IMPLEMENTATION BY STATES PARTIES 22. Opportunities for the realization of children’s rights and their protection in the digital environment require a broad range of legislative, administrative and other measures, including precautionary ones.
A. LEGISLATION
EVOLVING CAPACITIES 19. States parties should respect the evolving capacities of the child as an enabling principle that addresses the process of their gradual acquisition of competencies, understanding and agency.9 That process has particular significance in the digital environment, where children can engage more independently from supervision by parents and caregivers. The risks and opportunities associated with children’s engagement in the digital environment change depending on their age and stage of development. They should be guided by those considerations whenever they are designing measures to protect children in, or facilitate their access to, that environment. The design of ageappropriate measures should be informed by the best and most up-to-date research available, from a range of disciplines. 20. States parties should take into account the changing position of children and their agency in the modern world, children’s competence and understanding, which develop unevenly across areas of skill and activity, and the diverse nature of the risks involved. Those considerations must be balanced with the importance of exercising their rights in supported environments and the range of individual experiences and circumstances.10 States parties should ensure that digital service providers offer services that are appropriate for children’s evolving capacities. 21. In accordance with States’ duty to render appropriate assistance to parents and caregivers in the performance of their child-rearing responsibilities, States parties should promote awareness among parents and caregivers of the need to respect children’s evolving autonomy, capacities and privacy. They should support parents and caregivers in acquiring digital literacy and awareness of the risks to children in order to help them to assist children in the realization of their rights, including to protection, in relation to the digital environment. 9 General comment No. 7 (2005), para. 17; and general comment No. 20 (2016), paras. 18 and 20. 10 General comment No. 20 (2016), para. 20. 354
23. States parties should review, adopt and update national legislation in line with international human rights standards, to ensure that the digital environment is compatible with the rights set out in the Convention and the Optional Protocols thereto. Legislation should remain relevant, in the context of technological advances and emerging practices. They should mandate the use of child rights impact assessments to embed children’s rights into legislation, budgetary allocations and other administrative decisions relating to the digital environment and promote their use among public bodies and businesses relating to the digital environment.11
B. COMPREHENSIVE POLICY AND STRATEGY INTEGRALES 24. States parties should ensure that national policies relating to children’s rights specifically address the digital environment, and they should implement regulation, industry codes, design standards and action plans accordingly, all of which should be regularly evaluated and updated. Such national policies should be aimed at providing children with the opportunity to benefit from engaging with the digital environment and ensuring their safe access to it. 25. Children’s online protection should be integrated within national child protection policies. States parties should implement measures that protect children from risks, including cyberaggression and digital technologyfacilitated and online child sexual exploitation and abuse, ensure the investigation of such crimes and provide remedy and support for children who are victims. They should also address the needs of children in disadvantaged or vulnerable situations, including by providing child-friendly information that is, when necessary, translated into relevant minority languages. 26. States parties should ensure the operation of effective child protection mechanisms online and safeguarding policies, while also respecting children’s other rights, in all settings where children access the digital environment, which includes the home, educational settings, cybercafés, youth centres, libraries and health and alternative care settings. 11 General comment No. 5 (2003), para. 45; general comment No. 14 (2013), para. 99; and general comment No. 16 (2013), paras. 78–81.
BACK
KEYWORDS INDEX
U PV EDR A TED SION
C. COORDINATION 27. To encompass the cross-cutting consequences of the digital environment for children’s rights, States parties should identify a government body that is mandated to coordinate policies, guidelines and programmes relating to children’s rights among central government departments and the various levels of government.12 Such a national coordination mechanism should engage with schools and the information and communications technology sector and cooperate with businesses, civil society, academia and organizations to realize children’s rights in relation to the digital environment at the cross-sectoral, national, regional and local levels.13 It should draw on technological and other relevant expertise within and beyond government, as needed, and be independently evaluated for its effectiveness in meeting its obligations.
D. ALLOCATION OF RESOURCES 28. States parties should mobilize, allocate and utilize public resources to implement legislation, policies and programmes to fully realize children’s rights in the digital environment and to improve digital inclusion, which is needed to address the increasing impact of the digital environment on children’s lives and to promote the equality of access to, and affordability of, services and connectivity. 14
29. Where resources are contributed from the business sector or obtained through international cooperation, States parties should ensure that their own mandate, revenue mobilization, budget allocations and expenditure are not interfered with or undermined by third parties.15
E. DATA COLLECTION AND RESEARCH 30. Regularly updated data and research are crucial to understanding the implications of the digital environment for children’s lives, evaluating its impact on their rights and assessing the effectiveness of State interventions. States parties should ensure the collection of robust, comprehensive data that is adequately resourced and that data are disaggregated by age, sex, disability, geographical location, ethnic and national origin and socioeconomic background. Such data and research, including research conducted with and by children, should inform legislation, policy and practice and should be available in the public domain.16 Data collection and research relating to children’s digital lives must respect their privacy and meet the highest ethical standards.
F. INDEPENDENT MONITORING 31. States parties should ensure that the mandates of national human rights institutions and other appropriate independent institutions cover children’s rights in the 12 General comment No. 5 (2003), para. 37. 13 Ibid., paras. 27 and 39. 14 General comment No. 19 (2016), para. 21. 15 Ibid., para. 27 (b). 16 General comment No. 5 (2003), paras. 48 and 50.
digital environment and that they are able to receive, investigate and address complaints from children and their representatives.17 Where independent oversight bodies exist to monitor activities in relation to the digital environment, national human rights institutions should work closely with such bodies on effectively discharging their mandate regarding children’s rights.18
G. DISSEMINATION OF INFORMATION, AWARENESS-RAISING AND TRAINING 32. States parties should disseminate information and conduct awareness-raising campaigns on the rights of the child in the digital environment, focusing in particular on those whose actions have a direct or indirect impact on children. They should facilitate educational programmes for children, parents and caregivers, the general public and policymakers to enhance their knowledge of children’s rights in relation to the opportunities and risks associated with digital products and services. Such programmes should include information on how children can benefit from digital products and services and develop their digital literacy and skills, how to protect children’s privacy and prevent victimization and how to recognize a child who is a victim of harm perpetrated online or offline and respond appropriately. Such programmes should be informed by research and consultations with children, parents and caregivers. 33. Professionals working for and with children and the business sector, including the technology industry, should receive training that includes how the digital environment affects the rights of the child in multiple contexts, the ways in which children exercise their rights in the digital environment and how they access and use technologies. They should also receive training on the application of international human rights standards to the digital environment. States parties should ensure that pre-service and in-service training relating to the digital environment is provided for professionals working at all levels of education, to support the development of their knowledge, skills and practice.
H. COOPERATION WITH CIVIL SOCIETY 34. States parties should systematically involve civil society, including child-led groups and non-governmental organizations working in the field of children’s rights and those concerned with the digital environment, in the development, implementation, monitoring and evaluation of laws, policies, plans and programmes relating to children’s rights. They should also ensure that civil society organizations are able to implement their activities relating to the promotion and protection of children’s rights in relation to the digital environment. 17 General comment No. 2 (2002), paras. 2 and 7. 18 Ibid., para. 7.
BI A CK N D E X
355
U PV EDR A TED SION
I. CHILDREN’S RIGHTS AND THE BUSINESS SECTOR
also require the provision of age-appropriate explanations to children, or to parents and caregivers for very young children, of their terms of service.
35. The business sector, including not-for-profit organizations, affects children’s rights directly and indirectly in the provision of services and products relating to the digital environment. Businesses should respect children’s rights and prevent and remedy abuse of their rights in relation to the digital environment. States parties have the obligation to ensure that businesses meet those responsibilities.19
J. COMMERCIAL ADVERTISING AND MARKETING
36. States parties should take measures, including through the development, monitoring, implementation and evaluation of legislation, regulations and policies, to ensure compliance by businesses with their obligations to prevent their networks or online services from being used in ways that cause or contribute to violations or abuses of children’s rights, including their rights to privacy and protection, and to provide children, parents and caregivers with prompt and effective remedies. They should also encourage businesses to provide public information and accessible and timely advice to support children’s safe and beneficial digital activities. 37. States parties have a duty to protect children from infringements of their rights by business enterprises, including the right to be protected from all forms of violence in the digital environment. Although businesses may not be directly involved in perpetrating harmful acts, they can cause or contribute to violations of children’s right to freedom from violence, including through the design and operation of digital services. States parties should put in place, monitor and enforce laws and regulations aimed at preventing violations of the right to protection from violence, as well as those aimed at investigating, adjudicating on and redressing violations as they occur in relation to the digital environment.20 38. States parties should require the business sector to undertake child rights due diligence, in particular to carry out child rights impact assessments and disclose them to the public, with special consideration given to the differentiated and, at times, severe impacts of the digital environment on children.21 They should take appropriate steps to prevent, monitor, investigate and punish child rights abuses by businesses. 39. In addition to developing legislation and policies, States parties should require all businesses that affect children’s rights in relation to the digital environment to implement regulatory frameworks, industry codes and terms of services that adhere to the highest standards of ethics, privacy and safety in relation to the design, engineering, development, operation, distribution and marketing of their products and services. That includes businesses that target children, have children as end users or otherwise affect children. They should require such businesses to maintain high standards of transparency and accountability and encourage them to take measures to innovate in the best interests of the child. They should 19 General comment No. 16 (2013), paras. 28, 42 and 82. 20 Ibid., para. 60. 21 Ibid., paras. 50 and 62–65. 356
40. The digital environment includes businesses that rely financially on processing personal data to target revenuegenerating or paid-for content, and such processes intentionally and unintentionally affect the digital experiences of children. Many of those processes involve multiple commercial partners, creating a supply chain of commercial activity and the processing of personal data that may result in violations or abuses of children’s rights, including through advertising design features that anticipate and guide a child’s actions towards more extreme content, automated notifications that can interrupt sleep or the use of a child’s personal information or location to target potentially harmful commercially driven content. 41. States parties should make the best interests of the child a primary consideration when regulating advertising and marketing addressed to and accessible to children. Sponsorship, product placement and all other forms of commercially driven content should be clearly distinguished from all other content and should not perpetuate gender or racial stereotypes. 42. States parties should prohibit by law the profiling or targeting of children of any age for commercial purposes on the basis of a digital record of their actual or inferred characteristics, including group or collective data, targeting by association or affinity profiling. Practices that rely on neuromarketing, emotional analytics, immersive advertising and advertising in virtual and augmented reality environments to promote products, applications and services should also be prohibited from engagement directly or indirectly with children.
K. ACCESS TO JUSTICE AND REMEDIES 43. Children face particular challenges in access to justice relating to the digital environment for a range of reasons. Such challenges arise because of the lack of legislation placing sanctions on children’s rights violations specifically in relation to the digital environment, the difficulties in obtaining evidence or identifying perpetrators or because children and their parents or caregivers lack knowledge of their rights or of what constitutes a violation or abuse of their rights in the digital environment, among other factors. Further challenges may arise if children are required to disclose sensitive or private online activities or from their fear of reprisals by peers or of social exclusion. 44. States parties should ensure that appropriate and effective remedial judicial and non-judicial mechanisms for the violations of children’s rights relating to the digital environment are widely known and readily available to all children and their representatives. Complaint and reporting mechanisms should be free of charge, safe, confidential, responsive, child-friendly and available in accessible formats. States parties should also provide for
BACK
KEYWORDS INDEX
U PV EDR A TED SION collective complaints, including class action and public interest litigation, and for legal or other appropriate assistance, including through specialized services, to children whose rights have been violated in or through the digital environment. 45. States parties should establish, coordinate and regularly monitor and evaluate frameworks for the referral of such cases and the provision of effective support to children who are victims.22 Frameworks should include measures for the identification of, therapy and follow-up care for, and the social reintegration of, children who are victims. Training on the identification of children who are victims should be included in referral mechanisms, including for digital service providers. Measures within such a framework should be multi-agency and child-friendly, to prevent a child’s revictimization and secondary victimization in the context of investigative and judicial processes. That may require specialized protections for confidentiality and to redress harms associated with the digital environment. 46. Appropriate reparation includes restitution, compensation and satisfaction and may require apology, correction, removal of unlawful content, access to psychological recovery services or other measures.23 In relation to violations in the digital environment, remedial mechanisms should take into account the vulnerability of children and the need to be swift to halt ongoing and future damage. States parties should guarantee the nonrecurrence of violations, including by the reform of relevant laws and policies and their effective implementation. 47. Digital technologies bring additional complexity to the investigation and prosecution of crimes against children, which may cross national borders. States parties should address the ways in which uses of digital technologies may facilitate or impede the investigation and prosecution of crimes against children and take all available preventative, enforcement and remedial measures, including in cooperation with international partners. They should provide specialized training for law enforcement officials, prosecutors and judges regarding child rights violations specifically associated with the digital environment, including through international cooperation. 48. Children may face particular difficulties in obtaining remedy when their rights have been abused in the digital environment by business enterprises, in particular in the context of their global operations.24 States parties should consider measures to respect, protect and fulfil children’s rights in the context of businesses’ extraterritorial activities and operations, provided that there is a reasonable link between the State and the conduct concerned. They should ensure that businesses provide effective complaint mechanisms; such mechanisms should not, however, prevent children from gaining access to State-based remedies. They should also ensure that agencies with oversight powers relevant to children’s rights, such as those relating to health and safety, data protection and consumer rights, education and advertising and marketing, investigate complaints and provide adequate remedies 22 General comment No. 21 (2017), para. 22. See also General Assembly resolution 60/147, annex. 23 General comment No. 5 (2003), para. 24. 24 General comment No. 16 (2013), paras. 66–67.
for violations or abuses of children’s rights in the digital environment.25 49. States parties should provide children with childsensitive and age-appropriate information in childfriendly language on their rights and on the reporting and complaint mechanisms, services and remedies available to them in cases where their rights in relation to the digital environment are violated or abused. Such information should also be provided to parents, caregivers and professionals working with and for children.
CIVIL RIGHTS AND FREEDOMS A. ACCESS TO INFORMATION 50. The digital environment provides a unique opportunity for children to realize the right to access to information. In that regard, information and communications media, including digital and online content, perform an important function.26 States parties should ensure that children have access to information in the digital environment and that the exercise of that right is restricted only when it is provided by law and is necessary for the purposes stipulated in article 13 of the Convention. 51. States parties should provide and support the creation of age-appropriate and empowering digital content for children in accordance with children’s evolving capacities and ensure that children have access to a wide diversity of information, including information held by public bodies, about culture, sports, the arts, health, civil and political affairs and children’s rights. 52. States parties should encourage the production and dissemination of such content using multiple formats and from a plurality of national and international sources, including news media, broadcasters, museums, libraries and educational, scientific and cultural organizations. They should particularly endeavour to enhance the provision of diverse, accessible and beneficial content for children with disabilities and children belonging to ethnic, linguistic, indigenous and other minority groups. The ability to access relevant information, in the languages that children understand, can have a significant positive impact on equality.27 53. States parties should ensure that all children are informed about, and can easily find, diverse and good quality information online, including content independent of commercial or political interests. They should ensure that automated search and information filtering, including recommendation systems, do not prioritize paid content 25 Ibid., paras. 30 and 43. 26 General comment No. 7 (2005), para. 35; and general comment No. 20 (2016), para. 47. 27 General comment No. 17 (2013), para. 46; and general comment No. 20 (2016), paras. 47–48.
BI A CK N D E X
357
U PV EDR A TED SION 57. Professional codes of conduct set by news media and other relevant organizations should include guidance on how to report digital risks and opportunities relating to children. Such guidance should result in evidence-based reporting that does not reveal the identity of children who are victims and survivors and that is in accordance with international human rights standards. with a commercial or political motivation over children’s choices or at the cost of children’s right to information. 54. The digital environment can include genderstereotyped, discriminatory, racist, violent, pornographic and exploitative information, as well as false narratives, misinformation and disinformation and information encouraging children to engage in unlawful or harmful activities. Such information may come from multiple sources, including other users, commercial content creators, sexual offenders or armed groups designated as terrorist or violent extremist. States parties should protect children from harmful and untrustworthy content and ensure that relevant businesses and other providers of digital content develop and implement guidelines to enable children to safely access diverse content, recognizing children’s rights to information and freedom of expression, while protecting them from such harmful material in accordance with their rights and evolving capacities.28 Any restrictions on the operation of any Internet-based, electronic or other information dissemination systems should be in line with article 13 of the Convention.29 States parties should not intentionally obstruct or enable other actors to obstruct the supply of electricity, cellular networks or Internet connectivity in any geographical area, whether in part or as a whole, which can have the effect of hindering a child’s access to information and communication. 55. States parties should encourage providers of digital services used by children to apply concise and intelligible content labelling, for example on the age-appropriateness or trustworthiness of content. They should also encourage the provision of accessible guidance, training, educational materials and reporting mechanisms for children, parents and caregivers, educators and relevant professional groups.30 Age-based or content-based systems designed to protect children from age-inappropriate content should be consistent with the principle of data minimization. 56. States parties should ensure that digital service providers comply with relevant guidelines, standards and codes31 and enforce lawful, necessary and proportionate content moderation rules. Content controls, school filtering systems and other safety-oriented technologies should not be used to restrict children’s access to information in the digital environment; they should be used only to prevent the flow of harmful material to children. Content moderation and content controls should be balanced with the right to protection against violations of children’s other rights, notably their rights to freedom of expression and privacy. 28 General comment No. 16 (2013), para. 58; and general comment No. 7 (2005), para. 35. 29 Human Rights Committee, general comment No. 34 (2011), para. 43. 30 General comment No. 16 (2013), paras. 19 and 59. 31 Ibid., paras. 58 and 61. 358
B. FREEDOM OF EXPRESSION 58. Children’s right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, using any media of their choice. Children reported32 that the digital environment offered significant scope to express their ideas, opinions and political views. For children in disadvantaged or vulnerable situations, technology-facilitated interaction with others who share their experiences can help them to express themselves. 59. Any restrictions on children’s right to freedom of expression in the digital environment, such as filters, including safety measures, should be lawful, necessary and proportionate. The rationale for such restrictions should be transparent and communicated to children in age-appropriate language. States parties should provide children with information and training opportunities on how to effectively exercise that right, in particular how to create and share digital content safely, while respecting the rights and dignity of others and not violating legislation, such as that relating to incitement to hatred and violence. 60. When children express their political or other views and identities in the digital environment, they may attract criticism, hostility, threats or punishment. States parties should protect children from cyberaggression and threats, censorship, data breaches and digital surveillance. Children should not be prosecuted for expressing their opinions in the digital environment, unless they violate restrictions provided by criminal legislation which are compatible with article 13 of the Convention. 61. Given the existence of commercial and political motivations to promote particular world views, States parties should ensure that uses of automated processes of information filtering, profiling, marketing and decisionmaking do not supplant, manipulate or interfere with children’s ability to form and express their opinions in the digital environment.
C. FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 62. States parties should respect the right of the child to freedom of thought, conscience and religion in the digital environment. The Committee encourages States parties to introduce or update data protection regulation and design standards that identify, define and prohibit practices that manipulate or interfere with children’s right to freedom of thought and belief in the digital environment, for example by emotional analytics or inference. Automated systems may be used to make inferences about a child’s inner state. They should ensure that automated systems 32 “Our rights in a digital world”, p. 16.
BACK
KEYWORDS INDEX
U PV EDR A TED SION or information filtering systems are not used to affect or influence children’s behaviour or emotions or to limit their opportunities or development. 63. States parties should ensure that children are not penalized for their religion or beliefs or have their future opportunities in any other way restricted. The exercise of children’s right to manifest their religion or beliefs in the digital environment may be subject only to limitations that are lawful, necessary and proportionate.
D. FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY 64. The digital environment can enable children to form their social, religious, cultural, ethnic, sexual and political identities and to participate in associated communities and in public spaces for deliberation, cultural exchange, social cohesion and diversity.33 Children reported that the digital environment provided them with valued opportunities to meet, exchange and deliberate with peers, decision makers and others who shared their interests.34 65. States parties should ensure that their laws, regulations and policies protect children’s right to participate in organizations that operate partially or exclusively in the digital environment. No restrictions may be placed on the exercise by children of their right to freedom of association and peaceful assembly in the digital environment other than those that are lawful, necessary and proportionate.35 Such participation should not in and of itself result in negative consequences to those children, such as exclusion from a school, restriction or deprivation of future opportunities or creation of a police profile. Such participation should be safe, private and free from surveillance by public or private entities. 66. Public visibility and networking opportunities in the digital environment can also support child-led activism and can empower children as advocates for human rights. The Committee recognizes that the digital environment enables children, including children human rights defenders, as well as children in vulnerable situations, to communicate with each other, advocate for their rights and form associations. States parties should support them, including by facilitating the creation of specific digital spaces, and ensure their safety.
E. RIGHT TO PRIVACY 67. Privacy is vital to children’s agency, dignity and safety and for the exercise of their rights. Children’s personal data are processed to offer educational, health and other benefits to them. Threats to children’s privacy may arise from data collection and processing by public institutions, businesses and other organizations, as well as from such criminal activities as identity theft. Threats may also arise from children’s own activities and from the activities of family members, peers or others, for example, by 33 General comment No. 17 (2013), para. 21; and general comment No. 20 (2016), paras. 44–45. 34 “Our rights in a digital world”, p. 20. 35 Human Rights Committee, general comment No. 37 (2020), paras. 6 and 34.
parents sharing photographs online or a stranger sharing information about a child. 68. Data may include information about, inter alia, children’s identities, activities, location, communication, emotions, health and relationships. Certain combinations of personal data, including biometric data, can uniquely identify a child. Digital practices, such as automated data processing, profiling, behavioural targeting, mandatory identity verification, information filtering and mass surveillance are becoming routine. Such practices may lead to arbitrary or unlawful interference with children’s right to privacy; they may have adverse consequences on children, which can continue to affect them at later stages of their lives. 69. Interference with a child’s privacy is only permissible if it is neither arbitrary nor unlawful. Any such interference should therefore be provided for by law, intended to serve a legitimate purpose, uphold the principle of data minimization, be proportionate and designed to observe the best interests of the child and must not conflict with the provisions, aims or objectives of the Convention. 70. States parties should take legislative, administrative and other measures to ensure that children’s privacy is respected and protected by all organizations and in all environments that process their data. Legislation should include strong safeguards, transparency, independent oversight and access to remedy. States parties should require the integration of privacy-by-design into digital products and services that affect children. They should regularly review privacy and data protection legislation and ensure that procedures and practices prevent deliberate infringements or accidental breaches of children’s privacy. Where encryption is considered an appropriate means, States parties should consider appropriate measures enabling the detection and reporting of child sexual exploitation and abuse or child sexual abuse material. Such measures must be strictly limited according to the principles of legality, necessity and proportionality. 71. Where consent is sought to process a child’s data, States parties should ensure that consent is informed and freely given by the child or, depending on the child’s age and evolving capacity, by the parent or caregiver, and obtained prior to processing those data. Where a child’s own consent is considered insufficient and parental consent is required to process a child’s personal data, States parties should require that organizations processing such data verify that consent is informed, meaningful and given by the child’s parent or caregiver. 72. States parties should ensure that children and their parents or caregivers can easily access stored data, rectify data that are inaccurate or outdated and delete data unlawfully or unnecessarily stored by public authorities, private individuals or other bodies, subject to reasonable and lawful limitations.36 They should further ensure the right of children to withdraw their consent and object to personal data processing where the data controller does not demonstrate legitimate, overriding grounds for the processing. They should also provide information to 36 Human Rights Committee, general comment No. 16 (1988), para. 10.
BI A CK N D E X
359
U PV EDR A TED SION children, parents and caregivers on such matters, in childfriendly language and accessible formats. 73. Children’s personal data should be accessible only to the authorities, organizations and individuals designated under the law to process them in compliance with such due process guarantees as regular audits and accountability measures.37 Children’s data gathered for defined purposes, in any setting, including digitized criminal records, should be protected and exclusive to those purposes and should not be retained unlawfully or unnecessarily or used for other purposes. Where information is provided in one setting and could legitimately benefit the child through its use in another setting, for example, in the context of schooling and tertiary education, the use of such data should be transparent, accountable and subject to the consent of the child, parent or caregiver, as appropriate. 74. Privacy and data protection legislation and measures should not arbitrarily limit children’s other rights, such as their right to freedom of expression or protection. States parties should ensure that data protection legislation respects children’s privacy and personal data in relation to the digital environment. Through continual technological innovation, the scope of the digital environment is expanding to include ever more services and products, such as clothes and toys. As settings where children spend time become “connected”, through the use of embedded sensors connected to automated systems, States parties should ensure that the products and services that contribute to such environments are subject to robust data protection and other privacy regulations and standards. That includes public settings, such as streets, schools, libraries, sports and entertainment venues and business premises, including shops and cinemas, and the home. 75. Any digital surveillance of children, together with any associated automated processing of personal data, should respect the child’s right to privacy and should not be conducted routinely, indiscriminately or without the child’s knowledge or, in the case of very young children, that of their parent or caregiver; nor should it take place without the right to object to such surveillance, in commercial settings and educational and care settings, and consideration should always be given to the least privacyintrusive means available to fulfil the desired purpose. 76. The digital environment presents particular problems for parents and caregivers in respecting children’s right to privacy. Technologies that monitor online activities for safety purposes, such as tracking devices and services, if not implemented carefully, may prevent a child from accessing a helpline or searching for sensitive information. States parties should advise children, parents and caregivers and the public on the importance of the child’s right to privacy and on how their own practices may threaten that right. They should also be advised about the practices through which they can respect and protect children’s privacy in relation to the digital environment, while keeping them safe. Parents’ and caregivers’ monitoring of a child’s digital activity should be proportionate and in accordance with the child’s evolving capacities. 37 Ibid.; and Committee on the Rights of the Child, general comment No. 20 (2016), para. 46. 360
77. Many children use online avatars or pseudonyms that protect their identity, and such practices can be important in protecting children’s privacy. States parties should require an approach integrating safety-by-design and privacyby-design to anonymity, while ensuring that anonymous practices are not routinely used to hide harmful or illegal behaviour, such as cyberaggression, hate speech or sexual exploitation and abuse. Protecting a child’s privacy in the digital environment may be vital in circumstances where parents or caregivers themselves pose a threat to the child’s safety or where they are in conflict over the child’s care. Such cases may require further intervention, as well as family counselling or other services, to safeguard the child’s right to privacy. 78. Providers of preventive or counselling services to children in the digital environment should be exempt from any requirement for a child user to obtain parental consent in order to access such services.38 Such services should be held to high standards of privacy and child protection.
F. BIRTH REGISTRATION AND RIGHT TO IDENTITY 79. States parties should promote the use of digital identification systems that enable all newborn children to have their birth registered and officially recognized by the national authorities, in order to facilitate access to services, including health, education and welfare. Lack of birth registration facilitates the violation of children’s rights under the Convention and the Optional Protocols thereto. States parties should use up-to-date technology, including mobile registration units, to ensure access to birth registration, especially for children in remote areas, refugee and migrant children, children at risk and those in marginalized situations, and include children born prior to the introduction of digital identification systems. For such systems to benefit children, they should conduct awarenessraising campaigns, establish monitoring mechanisms, promote community engagement and ensure effective coordination between different actors, including civil status officers, judges, notaries, health officials and child protection agency personnel. They should also ensure that a robust privacy and data protection framework is in place.
VIOLENCE AGAINST CHILDREN 80. The digital environment may open up new ways to perpetrate violence against children, by facilitating situations in which children experience violence and/or may be influenced to do harm to themselves or others. Crises, such as pandemics, may lead to an increased risk of harm online, given that children spend more time on virtual platforms in those circumstances. 81. Sexual offenders may use digital technologies to solicit children for sexual purposes and to participate in online child sexual abuse, for example, by the live video streaming, 38 General comment No. 20 (2016), para. 60.
BACK
KEYWORDS INDEX
U PV EDR A TED SION production and distribution of child sexual abuse material and through sexual extortion. Forms of digitally facilitated violence and sexual exploitation and abuse may also be perpetrated within a child’s circle of trust, by family or friends or, for adolescents, by intimate partners, and may include cyberaggression, including bullying and threats to reputation, the non-consensual creation or sharing of sexualized text or images, such as self-generated content by solicitation and/or coercion, and the promotion of selfharming behaviours, such as cutting, suicidal behaviour or eating disorders. Where children have carried out such actions, States parties should pursue preventive, safeguarding and restorative justice approaches for the children involved whenever possible.39 82. States parties should take legislative and administrative measures to protect children from violence in the digital environment, including the regular review, updating and enforcement of robust legislative, regulatory and institutional frameworks that protect children from recognized and emerging risks of all forms of violence in the digital environment. Such risks include physical or mental violence, injury or abuse, neglect or maltreatment, exploitation and abuse, including sexual exploitation and abuse, child trafficking, gender-based violence, cyberaggression, cyberattacks and information warfare. States parties should implement safety and protective measures in accordance with children’s evolving capacities. 83. The digital environment can open up new ways for non-State groups, including armed groups designated as terrorist or violent extremist, to recruit and exploit children to engage with or participate in violence. States parties should ensure that legislation prohibits the recruitment of children by terrorist or violent extremist groups. Children accused of criminal offences in that context should be treated primarily as victims but, if charged, the child justice system should apply.
FAMILY ENVIRONMENT AND ALTERNATIVE CARE 84. Many parents and caregivers require support to develop the technological understanding, capacity and skills necessary to assist children in relation to the digital environment. States parties should ensure that parents and caregivers have opportunities to gain digital literacy, to learn how technology can support the rights of children and to recognize a child who is a victim of online harm and respond appropriately. Special attention should be paid to the parents and caregivers of children in disadvantaged or vulnerable situations. 85. In supporting and guiding parents and caregivers regarding the digital environment, States parties should promote their awareness to respect children’s growing autonomy and need for privacy, in accordance with their evolving capacities. States parties should take into account that children often embrace and experiment with digital opportunities and may encounter risks, including at a 39 General comment No. 24 (2019), para. 101; and CRC/C/156, para. 71.
younger age than parents and caregivers may anticipate. Some children reported wanting more support and encouragement in their digital activities, especially where they perceived parents’ and caregivers’ approach to be punitive, overly restrictive or not adjusted to their evolving capacities.40 86. States parties should take into account that support and guidance provided to parents and caregivers should be based on an understanding of the specificity and uniqueness of parent-child relations. Such guidance should support parents in sustaining an appropriate balance between the child’s protection and emerging autonomy, based on mutual empathy and respect, over prohibition or control. To help parents and caregivers to maintain a balance between parental responsibilities and children’s rights, the best interests of the child, applied together with consideration of the child’s evolving capacities, should be the guiding principles. Guidance to parents and caregivers should encourage children’s social, creative and learning activities in the digital environment and emphasize that the use of digital technologies should not replace direct, responsive interactions among children themselves or between children and parents or caregivers. 87. It is important that children separated from their families have access to digital technologies.41 Evidence has shown that digital technologies are beneficial in maintaining family relationships, for example, in cases of parental separation, when children are placed in alternative care, for the purposes of establishing relations between children and prospective adoptive or foster parents and in reuniting children in humanitarian crisis situations with their families. Therefore, in the context of separated families, States parties should support access to digital services for children and their parents, caregivers or other relevant persons, taking into consideration the safety and best interests of the child. 88. Measures taken to enhance digital inclusion should be balanced with the need to protect children in cases where parents or other family members or caregivers, whether physically present or distant, may place them at risk. States parties should consider that such risks may be enabled through the design and use of digital technologies, for example, by revealing the location of a child to a potential abuser. In recognition of those risks, They should require an approach integrating safety-by-design and privacy-bydesign and ensure that parents and caregivers are fully aware of the risks and available strategies to support and protect children. 40 “Our rights in a digital world”, p. 30. 41 General comment No. 21 (2017), para. 35.
BI A CK N D E X
361
U PV EDR A TED SION
CHILDREN WITH DISABILITIES
HEALTH AND WELFARE
89. The digital environment opens new avenues for children with disabilities to engage in social relationships with their peers, access information and participate in public decision-making processes. States parties should pursue those avenues and take steps to prevent the creation of new barriers and to remove existing barriers faced by children with disabilities in relation to the digital environment.
93. Digital technologies can facilitate access to health services and information and improve diagnostic and treatment services for maternal, newborn, child and adolescent physical and mental health and nutrition. They also offer significant opportunities for reaching children in disadvantaged or vulnerable situations or in remote communities. In situations of public emergency or in health or humanitarian crises, access to health services and information through digital technologies may become the only option.
90. Children with different types of disabilities, including physical, intellectual, psychosocial, auditory and visual disabilities, face different barriers in accessing the digital environment, such as content in non-accessible formats, limited access to affordable assistive technologies at home, school and in the community and the prohibition of the use of digital devices in schools, health facilities and other environments. States parties should ensure that children with disabilities have access to content in accessible formats and remove policies that have a discriminatory impact on such children. They should ensure access to affordable assistive technologies, where needed, in particular for children with disabilities living in poverty, and provide awareness-raising campaigns, training and resources for children with disabilities, their families and staff in educational and other relevant settings so that they have sufficient knowledge and skills to use digital technologies effectively.
94. Children reported that they valued searching online for information and support relating to health and wellbeing, including on physical, mental and sexual and reproductive health, puberty, sexuality and conception.42 Adolescents especially wanted access to free, confidential, age-appropriate and non-discriminatory mental health and sexual and reproductive health services online.43 States parties should ensure that children have safe, secure and confidential access to trustworthy health information and services, including psychological counselling services.44 Those services should limit the processing of children’s data to that which is necessary for the performance of the service and should be provided by professionals or those with appropriate training, with regulated oversight mechanisms in place. States parties should ensure that digital health products and services do not create or increase inequities in children’s access to in-person health services.
91. States parties should promote technological innovations that meet the requirements of children with different types of disabilities and ensure that digital products and services are designed for universal accessibility so that they can be used by all children without exception and without the need for adaptation. Children with disabilities should be involved in the design and delivery of policies, products and services that affect the realization of their rights in the digital environment.
95. States parties should encourage and invest in research and development that is focused on children’s specific health needs and that promotes positive health outcomes for children through technological advances. Digital services should be used to supplement or improve the in-person provision of health services to children.45 States parties should introduce or update regulation that requires providers of health technologies and services to embed children’s rights within the functionality, content and distribution thereof.
92. Children with disabilities may be more exposed to risks, including cyberaggression and sexual exploitation and abuse, in the digital environment. States parties should identify and address the risks faced by children with disabilities, taking steps to ensure that the digital environment is safe for them, while countering the prejudice faced by children with disabilities that might lead to overprotection or exclusion. Safety information, protective strategies and public information, services and forums relating to the digital environment should be provided in accessible formats.
96. States parties should regulate against known harms and proactively consider emerging research and evidence in the public health sector, to prevent the spread of misinformation and materials and services that may damage children’s mental or physical health. Measures may also be needed to prevent unhealthy engagement in digital games or social media, such as regulating against digital design that undermines children’s development and rights.46 97. States parties should encourage the use of digital technologies to promote healthy lifestyles, including 42 “Our rights in a digital world”, p. 37. 43 General comment No. 20 (2016), para. 59. 44 Ibid., paras. 47 and 59. 45 Ibid., paras. 47–48. 46 General comment No. 15 (2013), para. 84.
362
BACK
KEYWORDS INDEX
U PV EDR A TED SION physical and social activity.47 They should regulate targeted or age-inappropriate advertising, marketing and other relevant digital services to prevent children’s exposure to the promotion of unhealthy products, including certain food and beverages, alcohol, drugs and tobacco and other nicotine products.48 Such regulations relating to the digital environment should be compatible and keep pace with regulations in the offline environment. 98. Digital technologies offer multiple opportunities for children to improve their health and well-being, when balanced with their need for rest, exercise and direct interaction with their peers, families and communities. States parties should develop guidance for children, parents, caregivers and educators regarding the importance of a healthy balance of digital and non-digital activities and sufficient rest.
EDUCATION, LEISURE AND CULTURAL ACTIVITIES A. RIGHT TO EDUCATION RIGHT TO EDUCATION 99. The digital environment can greatly enable and enhance children’s access to high-quality inclusive education, including reliable resources for formal, non-formal, informal, peer-to-peer and self-directed learning. Use of digital technologies can also strengthen engagement between the teacher and student and between learners. Children highlighted the importance of digital technologies in improving their access to education and in supporting their learning and participation in extracurricular activities.49 100. States parties should support educational and cultural institutions, such as archives, libraries and museums, in enabling access for children to diverse digital and interactive learning resources, including indigenous resources, and resources in the languages that children understand. Those and other valuable resources can support children’s engagement with their own creative, civic and cultural practices and enable them to learn about those of others.50 States parties should enhance children’s opportunities for online and lifelong learning. 101. States parties should invest equitably in technological infrastructure in schools and other learning settings, ensuring the availability and affordability of a sufficient number of computers, high-quality and high-speed broadband and a stable source of electricity, teacher training on the use of digital educational technologies, accessibility and the timely maintenance of school technologies. They should also support the creation and dissemination of diverse digital educational resources of good quality in the languages that children understand and ensure that existing inequalities are not exacerbated, such as those 47 General comment No. 17 (2013), para. 13. 48 General comment No. 15 (2013), para. 77. 49 “Our rights in a digital world”, pp. 14, 16 and 30. 50 General comment No. 17 (2013), para. 10.
experienced by girls. States parties should ensure that the use of digital technologies does not undermine in-person education and is justified for educational purposes. 102. For children who are not physically present in school or for those who live in remote areas or in disadvantaged or vulnerable situations, digital educational technologies can enable distance or mobile learning.51 States parties should ensure that there is proper infrastructure in place to enable access for all children to the basic utilities necessary for distance learning, including access to devices, electricity, connectivity, educational materials and professional support. They should also ensure that schools have sufficient resources to provide parents and caregivers with guidance on remote learning at home and that digital education products and services do not create or exacerbate inequities in children’s access to in-person education services. 103. States parties should develop evidence-based policies, standards and guidelines for schools and other relevant bodies responsible for procuring and using educational technologies and materials to enhance the provision of valuable educational benefits. Standards for digital educational technologies should ensure that the use of those technologies is ethical and appropriate for educational purposes and does not expose children to violence, discrimination, misuse of their personal data, commercial exploitation or other infringements of their rights, such as the use of digital technologies to document a child’s activity and share it with parents or caregivers without the child’s knowledge or consent. 104. States parties should ensure that digital literacy is taught in schools, as part of basic education curricula, from the preschool level and throughout all school years, and that such pedagogies are assessed on the basis of their results.52 Curricula should include the knowledge and skills to safely handle a wide range of digital tools and resources, including those relating to content, creation, collaboration, participation, socialization and civic engagement. Curricula should also include critical understanding, guidance on how to find trusted sources of information and to identify misinformation and other forms of biased or false content, including on sexual and reproductive health issues, human rights, including the rights of the child in the digital environment, and available forms of support and remedy. They should promote awareness among children of the possible adverse consequences of exposure to risks relating to content, contact, conduct and contract, including cyberaggression, trafficking, sexual exploitation and abuse and other forms of violence, as well as coping strategies to reduce harm and strategies to protect their personal data and those of others and to build children’s social and emotional skills and resilience. 105. It is of increasing importance that children gain an understanding of the digital environment, including its infrastructure, business practices, persuasive strategies 51 Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2019), para. 64; and Committee on the Rights of the Child, general comment No. 11 (2009), para. 61; and general comment No. 21 (2017), para. 55. 52 General comment No. 20 (2016), para. 47.
BI A CK N D E X
363
U PV EDR A TED SION and the uses of automated processing and personal data and surveillance, and of the possible negative effects of digitalization on societies. Teachers, in particular those who undertake digital literacy education and sexual and reproductive health education, should be trained on safeguards relating to the digital environment.
B. RIGHT TO CULTURE, LEISURE AND PLAY 106. The digital environment promotes children’s right to culture, leisure and play, which is essential for their wellbeing and development.53 Children of all ages reported that they experienced pleasure, interest and relaxation through engaging with a wide range of digital products and services of their choice,54 but that they were concerned that adults might not understand the importance of digital play and how it could be shared with friends.55 107. Digital forms of culture, recreation and play should support and benefit children and reflect and promote children’s differing identities, in particular their cultural identities, languages and heritage. They can facilitate children’s social skills, learning, expression, creative activities, such as music and art, and sense of belonging and a shared culture.56 Participation in cultural life online contributes to creativity, identity, social cohesiveness and cultural diversity. States parties should ensure that children have the opportunity to use their free time to experiment with information and communications technologies, express themselves and participate in cultural life online. 108. States parties should regulate and provide guidance for professionals, parents and caregivers and collaborate with digital service providers, as appropriate, to ensure that digital technologies and services intended for, accessed by or having an impact on children in their leisure time are designed, distributed and used in ways that enhance children’s opportunities for culture, recreation and play. That can include encouraging innovation in digital play and related activities that support children’s autonomy, personal development and enjoyment. 109. States parties should ensure that the promotion of opportunities for culture, leisure and play in the digital environment is balanced with the provision of attractive alternatives in the physical locations where children live. Especially in their early years, children acquire language, coordination, social skills and emotional intelligence largely through play that involves physical movement and direct face-to-face interaction with other people. For older children, play and recreation that involve physical activities, team sports and other outdoor recreational activities can provide health benefits, as well as functional and social skills. 110. Leisure time spent in the digital environment may expose children to risks of harm, for example, through opaque or misleading advertising or highly persuasive or gambling-like design features. By introducing or using 53 General comment No. 17 (2013), para. 7. 54 “Our rights in a digital world”, p. 22. 55 General comment No. 17 (2013), para. 33. 56 Ibid., para. 5. 364
data protection, privacy-by-design and safety-by-design approaches and other regulatory measures, States parties should ensure that businesses do not target children using those or other techniques designed to prioritize commercial interests over those of the child. 111. Where States parties or businesses provide guidance, age ratings, labelling or certification regarding certain forms of digital play and recreation, they should be formulated so as not to curtail children’s access to the digital environment as a whole or interfere with their opportunities for leisure or their other rights.
SPECIAL PROTECTION MEASURES A. PROTECTION FROM ECONOMIC, SEXUAL AND OTHER FORMS OF EXPLOITATION 112. Children should be protected from all forms of exploitation prejudicial to any aspects of their welfare in relation to the digital environment. Exploitation may occur in many forms, such as economic exploitation, including child labour, sexual exploitation and abuse, the sale, trafficking and abduction of children and the recruitment of children to participate in criminal activities, including forms of cybercrime. By creating and sharing content, children may be economic actors in the digital environment, which may result in their exploitation. 113. States parties should review relevant laws and policies to ensure that children are protected against economic, sexual and other forms of exploitation and that their rights with regard to work in the digital environment and related opportunities for remuneration are protected. 114. States parties should ensure that appropriate enforcement mechanisms are in place and support children, parents and caregivers in gaining access to the protections that apply.57 They should legislate to ensure that children are protected from harmful goods, such as weapons or drugs, or services, such as gambling. Robust age verification systems should be used to prevent children from acquiring access to products and services that are illegal for them to own or use. Such systems should be consistent with data protection and safeguarding requirements. 115. Considering States’ obligations to investigate, prosecute and punish trafficking in persons, including its component actions and related conduct, States parties should develop and update anti-trafficking legislation so that it prohibits the technology-facilitated recruitment of children by criminal groups. 116. States parties should ensure that appropriate 57 General comment No. 16 (2013), para. 37.
BACK
KEYWORDS INDEX
U PV EDR A TED SION legislation is in place to protect children from the crimes that occur in the digital environment, including fraud and identity theft, and to allocate sufficient resources to ensure that crimes in the digital environment are investigated and prosecuted. States parties should also require a high standard of cybersecurity, privacy-by-design and safetyby-design in the digital services and products that children use, to minimize the risk of such crimes.
B. ADMINISTRATION OF CHILD JUSTICE 117. Children may be alleged to have, accused of or recognized as having infringed, cybercrime laws. States parties should ensure that policymakers consider the effects of such laws on children, focus on prevention and make every effort to create and use alternatives to a criminal justice response. 118. Self-generated sexual material by children that they possess and/or share with their consent and solely for their own private use should not be criminalized. Child-friendly channels should be created to allow children to safely seek advice and assistance where it relates to self-generated sexually explicit content. 119. States parties should ensure that digital technologies, surveillance mechanisms, such as facial recognition software, and risk profiling that are deployed in the prevention, investigation and prosecution of crimes are not used to unfairly target children suspected of or charged with criminal offences and are not used in a manner that violates their rights, in particular their rights to privacy, dignity and freedom of association. 120. The Committee recognizes that, where the digitization of court proceedings results in a lack of in-person contact with children, it may have a negative impact on rehabilitative and restorative justice measures built on developing relationships with the child. In such cases, and also where children are deprived of their liberty, States parties should provide in-person contact to facilitate children’s ability to meaningfully engage with the courts and their rehabilitation.
C. PROTECTION OF CHILDREN IN ARMED CONFLICT, MIGRANT CHILDREN AND CHILDREN IN OTHER VULNERABLE SITUATIONS 121. The digital environment can provide children living in vulnerable situations, including children in armed conflict, internally displaced children, migrant, asylum-seeking and refugee children, unaccompanied children, children in street situations and children affected by natural disasters, with access to life-saving information that is vital for their protection. The digital environment can also enable them to maintain contact with their families, enable their access to education, health and other basic services and enable them to obtain food and safe shelter. States parties should ensure safe, secure, private and beneficial access for such children to the digital environment and protect them from all forms of violence, exploitation and abuse.
122. States parties should ensure that children are not recruited or used in conflicts, including armed conflicts, through the digital environment. That includes preventing, criminalizing and sanctioning the various forms of technology-facilitated solicitation and grooming of children, for example, though use of social networking platforms or chat services in online games.
INTERNATIONAL AND REGIONAL COOPERATION 123. The cross-border and transnational nature of the digital environment necessitates strong international and regional cooperation, to ensure that all stakeholders, including States, businesses and other actors, effectively respect, protect and fulfil children’s rights in relation to the digital environment. It is therefore vital that States parties cooperate bilaterally and multilaterally with national and international non-governmental organizations, United Nations agencies, businesses and organizations specialized in child protection and human rights in relation to the digital environment. 124. States parties should promote and contribute to the international and regional exchange of expertise and good practices and establish and promote capacity-building, resources, standards, regulations and protections across national borders that enable the realization of children’s rights in the digital environment by all States. They should encourage the formulation of a common definition of what constitutes a crime in the digital environment, mutual legal assistance and the joint collection and sharing of evidence.
DISSEMINATION 125. States parties should ensure that the present general comment is widely disseminated, including through use of digital technologies, to all relevant stakeholders, in particular parliaments and government authorities, including those responsible for cross-cutting and sectoral digital transformation, as well as members of the judiciary, business enterprises, the media, civil society and the public at large, educators and children, and is made available in multiple formats and languages, including age-appropriate versions.
BI A CK N D E X
365
U PV EDR A TED SION
KEYWORDS INDEX
E Enforced disappearances 141
A Abduction 141, 167, 288, 326, 344 Abuse 25, 29, 33, 34, 38 - 43, 62, 66, 68, 72, 87, 94, 96, 97, 108 - 110, 114, 120, 123, 124, 141, 148, 149, 151, 156, 164, 166 - 169, 173, 174, 178, 179, 184, 185, 189, 190, 200, 203, 216, 217, 219 - 221, 232, 234, 237, 238, 277, 279, 280, 281, 283, 284, 285, 288, 292, 293, 296, 297, 300, 302, 303, 314, 324, 326, 327, 350 - 352, 354, 357 - 359, 360 - 363
Exploitation 16, 29, 33, 34, 38, 39, 42, 43, 62, 64, 67 - 69, 71, 87, 88, 94, 96, 97, 112 - 114, 120, 141, 157, 158, 160, 164, 166, 168, 176, 179, 189, 200, 216, 217, 219, 220, 232, 237, 252, 277 - 281, 283, 284, 286 - 289, 293, 294, 296, 297, 299, 302 - 304, 314, 315, 326, 327, 336, 344, 351, 352, 357 - 364 Economic exploitation 141, 217, 219, 220, 277, 287, 288, 303, 314, 326, 327 Sexual exploitation 141, 168, 179, 232, 283, 286, 288, 294, 297, 303, 304, 314, 326, 336, 344 Trafficking 141
Armed conflict 33, 34, 38, 42, 51, 59, 63, 65, 68, 69, 105, 110, 114, 139 - 141, 149, 158, 165, 189, 212, 217, 219, 257, 286, 288, 304, 316, 363
F
B
G
Birth registration 138, 167, 185, 199, 251, 282, 299, 323
Guarantee 135, 137, 143, 170, 188, 190, 237, 239, 276 - 279, 313, 322, 327
C Child’s best interests 137, 146, 157, 175, 176, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 197, 199, 222, 230, 231, 311, 312, 321, 322, 324, 325, 340, 341, 343
Family environment 108, 138, 283, 300, 359, 364
H Health-care 139, 156, 169, 174, 199, 200, 231, 253 - 256, 282, 284, 302, 316, 328, 330 HIV/AIDS 15, 28 - 35, 38, 40 - 43, 68, 80, 82, 84, 87, 111, 139, 178, 190, 196, 197, 276, 285, 293, 364
Child’s development 154, 190, 198, 235, 342 Child victim 141, 152, 168 Child witness 152
I
Convention on the Rights of the Child 9, 10, 11, 134, 135, 141, 142, 146, 147, 150, 153 - 155, 159, 164, 170, 182, 190, 196, 212, 214, 216, 217, 222, 228, 235, 238, 244 - 248, 250, 252, 255, 257, 260, 276, 282, 288, 292, 308 - 316, 320 - 330, 334, 340, 341
Identity 135, 138, 139, 141, 158, 188, 197, 229, 230, 233, 237, 246, 251, 277, 280, 283, 287, 288, 292, 296, 299, 300, 308, 310, 314, 323, 328, 338, 341 Inclusive education 112 Indigenous children 134 - 143, 155, 168, 178, 184, 214, 228, 280, 296, 345
D Discrimination Gender-based discrimination 197 Non-discrimination 15, 16, 29, 31, 32, 38, 50, 52, 62, 64, 102 - 104, 107, 135, 136, 146, 153, 166, 175, 186, 197, 213, 231, 237, 253, 265, 268, 278, 285, 293, 296, 309, 310, 311, 320, 329, 350
Information 135, 136, 138, 139, 142, 143, 146 - 151, 153 - 156, 158, 159, 165, 168, 169, 171 - 173, 178, 179, 183, 188, 190, 191, 192, 196 - 200, 202 - 205, 208, 209, 212, 213, 219 - 224, 232, 238, 253 - 256, 261 - 263, 266 - 272, 280 283, 285, 287, 288, 294 - 296, 299, 300, 304, 310, 311, 313, 316, 323, 325, 327, 328, 330, 335, 336, 339, 346 Access information 138, 188 International cooperation 137, 178, 179, 204, 205, 207, 217, 218, 240, 260 - 262, 264, 265, 267, 268, 271, 289, 301
366
BACK
KEYWORDS INDEX
U PV EDR A TED SION
J
R
Juvenile Justice 119, 120, 130
Racial Discrimination 134, 135
L
Right to be heard 135, 137, 138, 146 - 155, 157 - 160, 172, 173, 176, 186, 187, 231, 255, 266, 278, 293, 298, 313, 314, 324, 329, 339
Libertad de expresión 356
Right to health 190, 196, 197, 198, 199, 201 - 209, 285, 328
M
S
Mass media 134, 167, 169, 171, 183, 203, 205, 220, 228, 254
Special Protection 32, 86
Medical care 167, 301 Migration 141, 158, 189, 196, 245, 246, 247, 254, 277, 287, 288, 293, 302, 308, 309, 310, 311, 312, 313, 314, 315, 316, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330 Mortality 137, 139, 196, 199, 200, 202, 203, 208, 247, 252, 277, 284
T Traffic 41, 43, 110, 141, 203, 233, 234, 239, 277, 285, 297, 302, 326
V N Non-discrimination 135, 136, 146, 153, 166, 175, 186, 197, 213, 231, 237, 253, 265, 268, 278, 285, 293, 296, 309, 310, 311, 320, 329
P Parental Responsabilities 81 Participation 135, 137, 140, 146, 147, 148, 154, 155, 156, 157, 158, 159, 160, 164, 166, 170, 172, 173, 175, 176, 177, 187, 188, 190, 191, 196, 197, 198, 203, 207, 208, 215, 217, 229, 230, 231, 232, 234, 235, 236, 237, 246, 250, 252, 254, 261, 262, 263, 266, 267, 276, 278, 279, 280, 282, 284, 286, 287, 288, 293, 298, 299, 300, 303, 312, 313, 314, 329, 339, 340
Violence 148, 149, 151, 155, 156, 157, 158, 160, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 185, 189, 190, 197, 198, 199, 200, 203, 204, 207, 212, 213, 216, 217, 219, 220, 222, 228, 232, 233, 234, 236, 237, 238, 244, 245, 246, 247, 248, 252, 253, 255, 256, 277, 278, 279, 280, 282, 283, 284, 285, 286, 288, 292, 293, 294, 296, 298, 299, 300, 302, 303, 304, 311, 313, 314, 326, 327, 328, 335, 336, 344 Violence among children 168 Vulnerability 32, 42, 147, 169, 189, 190, 197, 214, 247, 252, 256, 276, 280, 288, 289, 297, 302, 308, 314, 326, 328, 329
Pregnancy among adolescents 202 Protect 136, 141, 142, 158, 164, 167, 171 - 173, 175, 177 - 179, 184, 188 - 190, 200, 201, 203 - 206, 212, 215 - 220, 222, 224, 229, 232, 234, 236 - 239, 245, 246, 248, 249, 251, 254, 263, 265, 267 - 269, 280, 282, 284, 285, 286, 293, 297, 298, 302, 303, 308 - 312, 314, 315, 320, 326, 327, 334
BI A CK N D E X
367
U PV EDR A TED SION
368
BACK
KEYWORDS INDEX